The Civil Code of Argentina was the
legal code
A code of law, also called a law code or legal code, is a systematic collection of statutes. It is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the cod ...
in force between 1871 and 2015,
which formed the foundation of the
system
A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment (systems), environment, is described by its boundaries, ...
of
civil law in
Argentina
Argentina (), officially the Argentine Republic ( es, link=no, República Argentina), is a country in the southern half of South America. Argentina covers an area of , making it the second-largest country in South America after Brazil, th ...
. It was written by
Dalmacio Vélez Sársfield, as the culmination of a series of attempts to codify civil law in Argentina. The original code was approved on September 25, 1869, by the passage of
Law 340, and became active on January 1, 1871. With numerous subsequent modifications, it continued to be the foundation of Argentine civil law (''Derecho civil argentino'') for more than a century. On 1 August 2015, the Civil Code of Argentina was replaced by a new Civil and Commercial Code - ''Código Civil y Comercial de la Nación''.
Vélez Sársfield's code reflects the influence of the
continental law
Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as t ...
and liberal principles of the 17th century. It was also influenced by the great
Napoleonic code, the Spanish laws in effect at that time in Argentina,
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
(especially through the work of
Savigny),
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
, the draft of the Brazilian civil code (''Esboço de um Código Civil para Brasil'') by
Freitas, and the influence of the
Chilean Civil Code
The Civil Code of the Republic of Chile (''Código Civil de la República de Chile'', also referred to as the ''Code of Bello'') is the work of jurist and legislator Andrés Bello. After several years of individual work (though officially present ...
(by
Andrés Bello
Andrés de Jesús MarÃa y José Bello López (; November 29, 1781 – October 15, 1865) was a Venezuelan- Chilean humanist, diplomat, poet, legislator, philosopher, educator and philologist, whose political and literary works constitute an ...
).
Approval of the Argentine civil code was necessary for judicial reasons and political reasons. It gave a new coherence and unity to civil law. The civil code's authority over provincial law improved the inconsistent existing legislation throughout the country at the time. This unity and coherence would bring two important benefits: it would facilitate both the people's knowledge about the law, as well as its application by judges, the legislation would also strengthen the political independence of the country, through legislative independence and national unity.
In spite of the stability brought by the civil code to the Argentine law system, it was subject to various modifications throughout its history, as was necessary to adequately regulate a society undergoing significant social, political and economical changes. The most important reform was Law 17.711 of April 22, 1968. Not only did the law change around 5% of the complete article, it is especially important due to the change in orientation regarding some regulated institutions. There were also other reform projects that were not implemented. Along with proposals to change institutions and methods, one of them proposed to merge the civil code with the ''commercial code'', following the example of the
Italian code.
After decades of deliberations, a new ''Código Civil y Comercial de la Nación'' was approved in 2014, and entered into force in 2015, replacing the old code.
Precursors
The codification in Argentina was part of a process being undertaken around the world, due to the advantages that such a systematic approach granted. Indeed, there had been earlier codifications; those completed toward the end of the 18th century and the beginning of the 19th century had a strong influence on the compilation of the Civil Code of Argentina. Stemming from these, there were separate attempts at civil codification in the Argentine republic during the first half of the 19th century, but it was finally achieved in 1869.
The unification of the country and its political growth and strengthening demanded the codification of the
civil laws, since it was not possible to continue under the uncertainty caused by the inadequate code that existed under the rule of the Spanish.
Before the Civil Code, there had been several attempts to this effect, without success. In 1824,
Juan Gregorio de las Heras issued a decree appointing one commission charged with compiling the Commercial Code and another charged with compiling the Military Code, but neither of these two projects' efforts came to fruition. In 1831, the Legislature of
Buenos Aires
Buenos Aires ( or ; ), officially the Autonomous City of Buenos Aires ( es, link=no, Ciudad Autónoma de Buenos Aires), is the capital and primate city of Argentina. The city is located on the western shore of the RÃo de la Plata, on South ...
adopted the Spanish Commercial Code compiled in 1829 and created a commission to see to any reforms to it that might be necessary. In 1852,
Justo José de Urquiza
Justo José de Urquiza y GarcÃa (; October 18, 1801 – April 11, 1870) was an Argentine general and politician who served as president of the Argentine Confederation from 1854 to 1860.
Life
Justo José de Urquiza y GarcÃa was b ...
created a commission of 14 members for the compilation of the Civil, Penal, Commercial and Procedural Codes. However, the revolution of September 11 of that year, which resulted in the secession of the
Province of Buenos Aires
Buenos Aires (), officially the Buenos Aires Province (''Provincia de Buenos Aires'' ), is the largest and most populous Argentine province. It takes its name from the city of Buenos Aires, the capital of the country, which used to be part of th ...
from the
Argentine Confederacy, prevented this project from making any concrete progress.
The
Argentine Constitution of 1853
The Argentine Constitution of 1853 is the current constitution of Argentina. It was approved in 1853 by all of the provincial governments except Buenos Aires Province, which remained separate from the Argentine Confederation until 1859. Afte ...
, in clause 11 of article 67, authorized the
Argentine National Congress
The Congress of the Argentine Nation ( es, Congreso de la Nación Argentina) is the legislative branch of the government of Argentina. Its composition is bicameral, constituted by a 72-seat Senate and a 257-seat Chamber of Deputies. The Senate ...
to draw up the Civil, Commercial, Penal and Mining Codes. With the intent of fulfilling this constitutional mandate,
Facundo ZuvirÃa
''Facundo: Civilization and Barbarism'' (original Spanish title: ''Facundo: Civilización y Barbarie'') is a book written in 1845 by Domingo Faustino Sarmiento, a writer and journalist who became the second president of Argentina. It is a corner ...
brought before the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
a law that would empower the Executive Branch to appoint a commission to complete those tasks. The law was passed and signed by Urquiza, but for financial reasons the initiative was postponed.
In the State of Buenos Aires, an initiative to launch a Civil Code suffered the same fate. On October 17, 1857, a law was passed that authorized the Executive Branch to spend the necessary funds to compile the Civil, Criminal and Procedural Codes, but the initiative was ultimately frustrated. However, the Commercial Code had better luck. The task of compiling that code had been given to
Dalmacio Vélez Sársfield and
Eduardo Acevedo Maturana
Eduardo Acevedo Maturana (Montevideo, 1815 – 1863) was a Uruguayan jurist and politician.
Biography
He studied law in Buenos Aires and became a renowned law scholar. His project was influential in the later creation of the Uruguayan Civil Cod ...
, who sent it to the legislature for its approval. The Commercial Code of the State of Buenos Aires was finally passed in 1859, and it was this code that was adopted at the national level in 1862 and amended in 1889.
Legislation in force prior to its sanction
Until the sanction of the Code, the Argentine legislation was based on the Spanish legislation previous to the
May Revolution
The May Revolution ( es, Revolución de Mayo) was a week-long series of events that took place from May 18 to 25, 1810, in Buenos Aires, capital of the Viceroyalty of the RÃo de la Plata. This Spanish colony included roughly the terri ...
, and on the one called ''Legislación Patria'' (Native Legislation).
The Spanish legislation in use in the country was the New Compilation of 1567, since the
Newest Compilation of 1805 did not have application before the revolution. The New Compilation contained laws coming from the ''
Fuero Real
(), (), () or () is a Law of Spain, Spanish legal term and concept. The word comes from Latin , an open space used as a market, tribunal and meeting place. The same Latin root is the origin of the French language, French terms and , and the ...
'' (Royal Jurisdiction), the ''
Ordenamiento de Alcalá'' (the Code Law Reordering of Alcalá), the Reordering of Montalvo and the Laws of
Toro. In order of importance:
*1st New Compilation,
*2nd Fuero Real,
*3rd
Fuero Juzgo,
*4th Fuero viejo de Castilla (Old Fuero of Castile),
*5th the
Partidas
The ''Siete Partidas'' (, "Seven-Part Code") or simply ''Partidas'', was a Castilian statutory code first compiled during the reign of Alfonso X of Castile (1252–1284), with the intent of establishing a uniform body of normative rules for the ...
.
Nevertheless, the ''Siete Partidas'' (Seven-Part Codes) were more often applied due to their prestige, the extension of the addressed matters, and the further knowledge of them by judges and lawyers.
The ''Legislación Patria'' was composed of the laws sanctioned by the provincial and national governments. These laws were of considerably less importance compared to the Spanish legislation and weren't altered, confirming the principle according to which the political
emancipation
Emancipation generally means to free a person from a previous restraint or legal disability. More broadly, it is also used for efforts to procure economic and social rights, political rights or equality, often for a specifically disenfranchis ...
lets endure the previous private Law until the new State arranges otherwise, in exercise of its sovereignty.
The primary national laws were the
liberty of wombs
Freedom of wombs ( es, Libertad de vientres, pt, Lei do Ventre Livre), also referred to as free birth or the law of wombs, was a 19th century judicial concept in several Latin American countries, that declared that all wombs bore free children. A ...
(''Libertad de Vientres'') and of the slaves entering the territory (1813), the suppression of entailed states (''
mayorazgo'') (1813) and of
emphyteusis
Emphyteusis (Greek: implanting) is a contract for land that allows the holder the right to the enjoyment of a property, often in perpetuity, on condition of proper care, payment of tax and rent. The right encompasses assignment and of descent.
His ...
(1826), and the suppression of gentilic retract (1868), that gave the right to re-acquire family real estate sold to a stranger to the nearest relative of the original vendor (up to the 4th grade of kinship).
Other various laws and provincial decrees modifying different institutions existed, as the emancipation by age rating (dictated by
Buenos Aires
Buenos Aires ( or ; ), officially the Autonomous City of Buenos Aires ( es, link=no, Ciudad Autónoma de Buenos Aires), is the capital and primate city of Argentina. The city is located on the western shore of the RÃo de la Plata, on South ...
on November 17, 1824, by
Tucumán on September 1, 1860, and by
Entre RÃos on March 10, 1866); the determination of
domicile
Domicile may refer to:
* Home, a place where someone lives
* Domicile (astrology)
In astrology, a planet's domicile (or less commonly house, not to be confused with the astrological house system) is the zodiac sign over which it has rulership ...
in the main estate (dictated by Buenos Aires on September 16, 1859), about books of births, matrimonies and deaths, being the parish priests in charge (dictated by Buenos Aires on December 19, 1821, by
Jujuy
San Salvador de Jujuy (), commonly known as Jujuy and locally often referred to as San Salvador, is the capital and largest city of Jujuy Province in northwest Argentina. Also, it is the seat of the Doctor Manuel Belgrano Department. It lies near ...
on September 7, 1836, and by
Santa Fe on May 17, 1862); about restrictions and limits to the domains (dictated by Buenos Aires on July 27, 1865, by Jujuy in February 1855 and March 7, 1857, and by
Córdoba on August 27, 1868); and of the renting of fields (dictated by Santa Fe on July 31, 1837).
Sanction
Argentina had been attempting without success to join the codifying movement in vogue at that time in some of the world's most powerful nations. The creation of the code would bring several advantages to the legislation that was at that time characterized by its dispersion, and consequently, its difficult implementation. The new system would provide mainly a unity and coherence to the civil legislation, and thus it would help it to be known and applied.
There were also reasons of judicial nationalism that were motives for its creation, since it was considered necessary to reaffirm the political independence obtained decades before through legislative independence. The legislation most influential on Argentine law was until then the Spanish legislation, sanctioned centuries before, primarily because national law had minimal influence on
private law
Private law is that part of a civil law legal system which is part of the ''jus commune'' that involves relationships between individuals, such as the law of contracts and torts (as it is called in the common law), and the law of obligations ( ...
.
Finally, the sanction of a code was hoped to become an efficient instrument for the consolidation of the national unity that had been expensively obtained only a few years earlier. The unification could have been damaged if the
provinces
A province is almost always an administrative division within a country or state. The term derives from the ancient Roman ''provincia'', which was the major territorial and administrative unit of the Roman Empire's territorial possessions outsi ...
had kept their own laws, or had independently sanctioned new ones to fix the inadequacies in the Spanish one instead of doing it in an unified way.
On June 6, 1863, Law No. 36, sponsored by deputy José MarÃa Cabral from
Corrientes Province
Corrientes (, ‘currents’ or ‘streams’; gn, Taragui), officially the Province of Corrientes ( es, Provincia de Corrientes; gn, Taragüà Tetãmini) is a province in northeast Argentina, in the Mesopotamia region. It is surrounded by (fr ...
, was passed, which empowered the
executive branch
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a State (polity), state.
In poli ...
to appoint commissions in charge of writing the projects for the Civil, Penal, and Mining Codes and Military Ordinances.
Even though the law allowed for the creation of commissions of several persons, president
Bartolomé Mitre
Bartolomé Mitre MartÃnez (26 June 1821 – 19 January 1906) was an Argentine statesman, soldier and author. He was President of Argentina from 1862 to 1868 and the first president of unified Argentina.
Mitre is known as the most versatile ...
decided to put a single person in charge,
Dalmacio Vélez Sársfield, through a decree dated October 20, 1864.
Vélez Sársfield redacted the Project for the Civil Code without collaborators other than assistants that would transcribe his drafts. Among them were
Victorino de la Plaza
Victorino de la Plaza y Palacios (2 November 1840 – 2 October 1919) was an Argentine politician and lawyer who served as President of Argentina from 9 August 1914 to 11 October 1916.
As the second son of José Roque Mariano de la Plaza E ...
, who later would become president, Eduardo DÃaz de Vivar and Vélez Sársfield's daughter Aurelia. For the task, Vélez Sársfield withdrew to a country house he owned, located a few kilometers from
Buenos Aires
Buenos Aires ( or ; ), officially the Autonomous City of Buenos Aires ( es, link=no, Ciudad Autónoma de Buenos Aires), is the capital and primate city of Argentina. The city is located on the western shore of the RÃo de la Plata, on South ...
city, where he wrote the drafts that his assistants transcribed. The final transcript was delivered to the government for its printing, and was later destroyed. The drafts can currently be found at the
Universidad Nacional de Córdoba
Universidad (Spanish for "university") may refer to:
Places
* Universidad, San Juan, Puerto Rico
* Universidad (Madrid)
Football clubs
* Universidad SC, a Guatemalan football club that represents the Universidad de San Carlos de Guatemala
...
.
As Vélez Sársfield moved forward with his work, he would send it to the executive branch, which would then print and distribute it among the legislators, magistrates, lawyers and "competent persons, to allow them to study the work now and build an opinion of it for the time of its ratification". Vélez Sársfield finished Book I in 1865, the first two sections of Book II in 1866, the third section of that book at the beginning of 1867, Book III in 1868, and Book IV in 1869, finishing the code after 4 years and 2 months of work.
The project completed, President
Domingo Faustino Sarmiento
Domingo Faustino Sarmiento (; born Domingo Faustino Fidel ValentÃn Sarmiento y AlbarracÃn; 15 February 1811 – 11 September 1888) was an Argentine activist, intellectual, writer, statesman and the second President of Argentina. His writing s ...
sent a note to the Congress on August 25, 1869, proposing the law that would ratify the project of the Civil Code. In the message, Sarmiento recommended immediate implementation, "entrusting its reform to the passage of future laws that will be enacted as experience dictates their necessity".
The Chamber of Deputies approved the project on September 22, 1869, after rejecting various alternate version and objections to its being passed without amendment. The chamber determined that it would become effective on January 1, 1871. It then passed to the Senate, which ratified it on September 25, and it was promulgated by Sarmiento on September 29.
The Project was closed-book endorsed, that is it was accepted without changes to the original, which according to LlambÃas did not require any debate:
The endorsement of the Civil Code represented a great improvement over the previous legal regime, and fused modern advances in doctrine with local customs and active law.
Sources of the Civil Code
In his work on the Code,
Dalmacio Vélez Sársfield was inspired by contemporary and older codes, by national and international law, and to a large extent by the prevailing doctrines of the period. These sources can be classified as follows:
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
, Spanish and Argentine law,
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
, the
Napoleonic Code and its commentaries, the work of Freitas, and various other minor sources.
Roman law
Roman law was not a direct influence on the civil code in the sense that none of its dispositions were directly extracted from the
Corpus Iuris Civilis
The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred ...
or from any Roman jurist's passage. Nevertheless, Vélez Sársfield returned to the Roman criteria in some institutions' regulations, even those that hadn't been addressed by the contemporary codification. That was the case of
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
transmitted by "tradition", as opposed to the French code, which had changed it to transmission by "consentment". Moreover, among the notes of the codifier there are quotes of those laws, but they are second-hand references.
The indirect Roman influence is reflected in the most part in the doctrines used by the author, especially as regards patrimonial structures. The main influence on the work of Vélez Sarsfield was the German Romanist
Friedrich Carl von Savigny
Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and historian.
Early life and education
Savigny was born at Frankfurt am Main, of a family recorded in the history of Lorraine, deriving its name from the cast ...
with his work "System of the present Roman law" (''System des heutigen römischen Rechts''), used especially referring to
legal entities
In law, a legal person is any person or 'thing' (less ambiguously, any legal entity) that can do the things a human person is usually able to do in law – such as enter into contracts, sue and be sued, own property, and so on. The reason for ...
, obligations, property and possession, and the adoption of the
domicile
Domicile may refer to:
* Home, a place where someone lives
* Domicile (astrology)
In astrology, a planet's domicile (or less commonly house, not to be confused with the astrological house system) is the zodiac sign over which it has rulership ...
principle as a determining element of the law, applicable to the people's marital status and
capacity.
Spanish and native legislation
Once he finished the gathering process, Vélez Sársfield was criticized for ignoring the Spanish legislation, which by the time was the one in effect in Argentina. One of these critics was
Juan Bautista Alberdi
Juan Bautista Alberdi (August 29, 1810 – June 19, 1884) was an Argentine political theorist and diplomat. Although he lived most of his life in exile in Montevideo, Uruguay and in Chile, he influenced the content of the Constitution of Arg ...
, who was refuted by the modernizing critic and by Vélez himself:
The influence of this legislation regarding its method and technique was practically null, what can be understood due to the dispersion that characterized it. Nevertheless, on the material, and the sense and reach of the dispositions, Vélez did make use of the old Right, adopting it to the new needs.
The national legislation had little relevance on private law, though it did partially influence on the work of the Coder. Such is the case of the hereditary vocation of the article 3,572, whose antecedent is the law dictated by the legislature of the
Buenos Aires Province
Buenos Aires (), officially the Buenos Aires Province (''Provincia de Buenos Aires'' ), is the largest and most populous Argentine province. It takes its name from the city of Buenos Aires, the capital of the country, which used to be part of th ...
dictated on May 22, 1857. Vélez had also in mind the uses and customs of the country, especially regarding the family organisation.
Canon law
Canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
had a large influence over
family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
, especially in the area of matrimony. Vélez Sársfield left matrimony under the jurisdiction of the
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
, taking the institution of canonical marriage and giving it civil effects. But the validity of matrimony was unchanged from the canonical version and the dispositions of the ecclesiastical courts, which would remain until the sanction of the law of civil matrimony. About this, Vélez Sársfield expressed:
This resolution by Vélez Sársfield is explained by the uses and customs of that time, as it shows the sanction of a law of civil matrimony by the legislature of the
Santa Fe Province
The Province of Santa Fe ( es, Provincia de Santa Fe, ) is a Provinces of Argentina, province of Argentina, located in the center-east of the country. Neighboring provinces are from the north clockwise Chaco Province, Chaco (divided by the 28th ...
in 1867: the law produced a popular reaction that ended with the resignation of the governor and the dissolution of the legislature house, which annulled the law when it was reconstituted.
Napoleon's Code
The influence of this code in the Coder movement proved very important, and the Civil Code of Argentina did not escape from this influence, being in a direct way or through his commentators.
The direct influence can be shown in the 145 articles copied from the French code. But the main direct influence of the commentators is that of the treta of
Charles Aubry
Charles Aubry (1803–1883) was a French jurist. He taught law at Strasbourg from 1833 to 1871 and was a judge on the Cour de Cassation from 1872 to 1878.
He was made famous in French legal circles by his only publication, together with Frédà ...
and Frédéric Charles Rau, specially the third edition published in Paris between 1856 and 1858, of which the Coder took several passages that he used in around 700 articles. The work of
Raymond Troplong provided the material for 50 articles related to the testament inheritance, and others for the real rights. From
Jean Demolombe he took 52 articles for book IV and 9 for book III, from Chabot he used 18 articles for book IV, and from Zachariae 70 articles.
Freitas's work
The influence of Brazilian lawyer
Augusto Teixeira de Freitas
Augusto Teixeira de Freitas (1816–1883) was a prominent Brazilian jurist whose prolific writings inspired all South American private law codifications.
After studies at Olinda and São Paulo, Teixeira de Freitas practiced law as an advocate ...
came from two of his works: the "Consolidation of the civil laws" (''Consolidação das Leis Civis'') and his "Draft of a civil code for Brazil" (''Esboço de um Código Civil pra Brasil'').
The ‘’Consolidation of the civil laws’’ sorts in 1,333 articles the material of the Portuguese legislation, that contained the same dispersion present in the Spanish legislation in use in the Americas. His "Draft" was commended to him by the
Empire of Brazil
The Empire of Brazil was a 19th-century state that broadly comprised the territories which form modern Brazil and (until 1828) Uruguay. Its government was a representative parliamentary constitutional monarchy under the rule of Emperors Dom Pe ...
in 1859, but remained unfinished after completion of article 4,908, without reaching the inheritance section. In spite of this, it was one of the most frequently consulted works by Vélez Sársfield; the first three books of the Argentine Civil Code contain more than 1,200 articles from the ''Draft''.
Other sources
Vélez Sársfield also used a number of different Codes and doctrine works that had a secondary influence in the Argentine Civil Code.
After the
French Code, the most influential code was the
Chilean Civil Code
The Civil Code of the Republic of Chile (''Código Civil de la República de Chile'', also referred to as the ''Code of Bello'') is the work of jurist and legislator Andrés Bello. After several years of individual work (though officially present ...
, promulgated on 1855 and written by lawman
Andrés Bello
Andrés de Jesús MarÃa y José Bello López (; November 29, 1781 – October 15, 1865) was a Venezuelan- Chilean humanist, diplomat, poet, legislator, philosopher, educator and philologist, whose political and literary works constitute an ...
. That code was highly valuated by the Argentine Coder, and it is estimated that he based on it for the formulation of 170 articles of the Argentine code.
He also made use of the Code of
Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, in which he based for the creation of 52 articles, of the
Albertine Code
Albertine may refer to:
Arts and entertainment
* ''Albertine'' (Krohg novel), an 1886 novel by Christian Krohg
** ''Albertine i politilægens venteværelse'' (''Albertine at the Police Doctor's Waiting Room''), an 1887 painting by Krohg
* ''Alb ...
for the Sardonic States, of the legislative Russian consolidation, the Code of Parma, the Code of
Two Sicilies
The Kingdom of the Two Sicilies ( it, Regno delle Due Sicilie) was a kingdom in Southern Italy from 1816 to 1860. The kingdom was the largest sovereign state by population and size in Italy before Italian unification, comprising Sicily and a ...
, the General
Prussian
Prussia, , Old Prussian: ''Prūsa'' or ''Prūsija'' was a German state on the southeast coast of the Baltic Sea. It formed the German Empire under Prussian rule when it united the German states in 1871. It was ''de facto'' dissolved by an e ...
Code of 1874, the Austrian Code of 1811, the Code of
New York State
New York, officially the State of New York, is a state in the Northeastern United States. It is often called New York State to distinguish it from its largest city, New York City. With a total area of , New York is the 27th-largest U.S. stat ...
and the Italian Code of 1865.
Vélez Sársfield made also use of the 1851 project for the
Spanish Civil Code
The Civil Code of Spain ( es, Código Civil), formally the Royal Decree of 24 July 1889 ( es, Real Decreto de 24 de julio de 1889) is the law that regulates the major aspects of Spanish civil law. It is one of the last civil codes in Continental ...
prepared by
Florencio GarcÃa Goyena
Florencio GarcÃa Goyena (1783 in Tafalla, Navarre – 1855) was a Spanish jurist.
GarcÃa Goyena studied law in Madrid and Salamanca before serving as legal counsel to the Cortes of Navarra and the governors of the provinces of Léon, Granad ...
. That project held 3,000 articles, and it's calculated that it helped in the formulation of 300 articles of the Argentine Code.
Finally, Vélez used 27 articles from the 1851 project for the Uruguayan Civil Code by
Eduardo Acevedo Maturana
Eduardo Acevedo Maturana (Montevideo, 1815 – 1863) was a Uruguayan jurist and politician.
Biography
He studied law in Buenos Aires and became a renowned law scholar. His project was influential in the later creation of the Uruguayan Civil Cod ...
, as well as some references for his notes.
Structure
Method is of crucial importance in a codification work, due its systematic nature, and to the vastness of the subject. Hence it is important to regard and direct man's behavior through general and specific formulae that find their appropriate place among the assembled articles.
Vélez Sársfield dedicated much effort to the selection of an adequate method, and after receiving objections to the use of the methods of
Justinian
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
's ''Institutiones'' and of the
French civil code, he decided to use the one followed by Freitas in his ''Consolidaçao das Leis Civis'', which finds its origins in the teachings of
Friedrich Carl von Savigny
Friedrich Carl von Savigny (21 February 1779 – 25 October 1861) was a German jurist and historian.
Early life and education
Savigny was born at Frankfurt am Main, of a family recorded in the history of Lorraine, deriving its name from the cast ...
.
According to Freitas's ideas, it is convenient to commence a Code Law by the general dispositions, then address the ones referred to the subject of every legal relation ("
the theory of persons"). But, as men don't live isolated but in their family's bosom, it must be continued with the
Family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
. Then the individual enters the civil life and establishes links person-to-person: the "
obligations
An obligation is a course of action that someone is required to take, whether legal or moral. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when ther ...
", or person-to-the-things submitted to him: the "
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
". Finally it must be legislated about the theory of
estate, with the "
successions" and the "theory of privileges". To end, the institution of
prescriptions, that, as referring to the rights as a whole, it was considered appropriate to locate it in a section inside the common dispositions to the real and personal rights.
Thus, the Civil Code organisation is the following:
*Preliminary titles: the Civil Code begins with two preliminary titles. The first title deals with the laws and elaborated a "general theory of the law". The second refers to the way of counting the intervals in law.
*Book I: This book is dedicated to the people. Its first section "Of the people in general", deals with the persons themselves, and the second, "On personal rights in family relationships", with the family.
*Book II: This book is divided into three sections. The first deals with the obligations in general and their limits. The second, talks about the judicial acts and doings that produced the acquisition, modification, transfer and lose of the rights and obligations. Finally, the third deals with obligations from contracts.
*Book III: This book talks about real rights, dealing with things themselves, or in relation with the persons.
*Book IV: This book contains a preliminary title about the transmission of rights in general. It then has three sections: the first about successions ''
mortis causa'', the second about privileges and right of keeping, and the third about
prescription.
Fundamental principles
The compilation of the Civil Code was organized around a set of fundamental principles, which were based on ideas in vogue at the time of its compilation:
*Sovereign will principle: The terms specified in contracts should be respected as if they were law, insofar as the exercise of a right would not constitute an illicit act. However, jurisprudence has established restrictions on this principle, as specified by Article 953, in the so-called "moral clause": "''The object of legal compacts should be acts that are not contrary to respected custom.''"
*Responsibility based on fault:
Civil responsibility was grounded in the idea of
fault. Article 1067 establishes that no punishable illicit act exists where there has been no harm caused, or exterior action that could cause harm, and without the ability to impute
Mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
, fault or negligence to the actor.
*Absolute right to property: The right of private property allows one to use, enjoy, and even destroy something owned, but there are certain limitations imposed on the reach of this right, and jurisprudence establishes restrictions, based on the aforementioned Article 953. The justification of the right to destroy property is established in the following note found in Article 2.513: "''
..But it must be recognized that with absolute right to property, comes the right to destroy property. Any preventive restriction would cause more harm than good. If the state acts as an arbiter of abuse, soon it will begin to act as arbiter of use, and any real notion of private property and liberty would be lost.''"
*Family grounded in indissoluble matrimony:
Family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
was grounded in the concept of indissoluble
matrimony
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
, and parentage was classified according to origin, either from within marriage or outside of wedlock. Children born out of wedlock were further classified as natural, from adultery, from incest, or sacrilegious. This framework excluded non-
Catholics
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
, who had only gained the right to marry in 1888, with the reform imposed by Law N° 2.393.
Notes by the Codifier
The Civil Code of Argentina has a unique feature, which is the inclusion of footnotes with the articles, in which Vélez Sársfield explains the origin of, and principles governing, the positions adopted, sometimes citing or inserting laws and paragraphs from a source treatise.
The presence of these notes stems from a request from the Ministry of Justice, that he annotate each article and its conformity to or divergence from laws currently in force in the country, as well as those of the major world powers.
The notes are very valuable from a
doctrinal
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
standpoint. In them the codifier states the problem, summarizes the arguments and chooses a solution, always in a succinct manner. As a result, the Code became a veritable treatise on
comparative law
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
, which proved to be quite useful, as the bibliographic material available at the end of the 19th century was not plentiful.
It is important to note that the footnotes contain numerous errors and even contradictions ''vis-à -vis'' the article text, as can be seen in the text of articles 2.311 and 2.312 and the footnote to the former. Some of these errors are attributable to the codifier, but others are likely due to circumstances beyond his control. There are instances where Vélez Sársfield reworked an entire title or modified a rule without altering the footnotes pertaining to the original edition. In this manner, for example, all the footnotes in Book IV were brought directly from the original drafts by
Victorino de la Plaza
Victorino de la Plaza y Palacios (2 November 1840 – 2 October 1919) was an Argentine politician and lawyer who served as President of Argentina from 9 August 1914 to 11 October 1916.
As the second son of José Roque Mariano de la Plaza E ...
without any of the pertinent modifications. That said, one should keep in mind that during the editing of ''Nueva York'' and ''La Pampa'' many modifications from the original text were accumulated.
Editions
The project drawn up by Vélez Sársfield was printed as the author was sending the different books to the government. The first book was printed by the press called "''La Nación Argentina''"" (The Argentine Nation) in 1865, while the rest of the installments were printed by Pablo Cini in 1866, 1867, 1868 and 1869. During 1869 Vélez trusted Coni with the reprinting of the first book, to maintain homegenity.
This edition, known as the ''Buenos Aires edition'', had many errors, and the numbering of the articles wasn't done with the work as a whole, but independently in every tome. This numbering method resulted very useful at the time of its writing, as the addition or suppression of new articles required minor touch-ups in the group of articles, but once printed was inefficient.
Because of this, President Sarmiento insinuated to the codifier the necessity of making a new version that included the typos corrections. Veléz Sársfield accepted this proposition, and commended this correction work to his cousin Carlos Carranza through a letter:
The printing was trusted by Sarmiento to the Argentine minister in Washington, D.C., Manuel GarcÃa, while the rest of the task was given to the company ''Hallet Breen'', who had quoted $2,000 less than other firms. This edition, renowned as the ''New York edition'', maintained the numbering depending on each tome, and wasn't free of typos either.
Laws of Errata
The first law of Errata was the law No. 527, that sanctioned what the Executive could propose for the new edition of the Civil College New York law, which could introduce a correction of 24 titles.
This was necessary because when the first copies of this edition arrived in the country at the end of 1870, President
Domingo Faustino Sarmiento
Domingo Faustino Sarmiento (; born Domingo Faustino Fidel ValentÃn Sarmiento y AlbarracÃn; 15 February 1811 – 11 September 1888) was an Argentine activist, intellectual, writer, statesman and the second President of Argentina. His writing s ...
's opposition took advantage of the modifications in the legal code sanctioned by Congress to initiate a media campaign against the government. For this reason
Victorino de la Plaza
Victorino de la Plaza y Palacios (2 November 1840 – 2 October 1919) was an Argentine politician and lawyer who served as President of Argentina from 9 August 1914 to 11 October 1916.
As the second son of José Roque Mariano de la Plaza E ...
and Aurelio Prado were appointed to compare both versions and report on the existing differences. While they were doing so, on January 1, 1871, President Sarmiento's decree declared the
Buenos Aires
Buenos Aires ( or ; ), officially the Autonomous City of Buenos Aires ( es, link=no, Ciudad Autónoma de Buenos Aires), is the capital and primate city of Argentina. The city is located on the western shore of the RÃo de la Plata, on South ...
edition to be official.
In August of that year, Dr. de la Plaza and Dr. Prado reported that they had found 1,882 differences between the two texts, but due to the intrascendencia of many of these alterations, they concluded that the new edition of the code was not contrary to that sanctioned by Congress.
However, public opinion was not amiable with this solution, as it declared official a text only nominally approved by the Congress and had a great amount of misprints besides. This last problem was what the senator for
Tucumán BenjamÃn Paz prepared to rectify, by means of a law project presented in 1878 that noticed 29 new errors. As this project passed through the commissions of the Chambers of Deputies and Senators, the number grew up as far as 285. This 285 errors are the ones that the Law No. 1196 corrects, sanctioned August 29, 1882, commonly known as the ''Law of Errata'', though it was the second of its kind to be sanctioned.
But all the corrections were not limited to merely formal adjustments: some of them introduced changes in the doctrine of the Civil Code edited by Vélez Sársfield. This is the case of the alteration introduced in the article 325, in whom it was added as a requisite ''sine qua non'' the state of natural son to start an action of
paternity
Paternity may refer to:
*Father, the male parent of a (human) child
*Paternity (law), fatherhood as a matter of law
* ''Paternity'' (film), a 1981 comedy film starring Burt Reynolds
* "Paternity" (''House''), a 2004 episode of the television seri ...
after the father's death:
The Law 1,196 also established the making of a new edition that included the corrections stated in that law. Abiding that disposition, in 1883 the third edition of the Civil Code was made, known as ''The Pampa'' edition for the name of the workshop who did the printing. This edition includes an important modification, being that the articles are number as whole.
In 1900, President
Julio A. Roca ordered a new edition that eliminated the articles revoked by the ''Civil Marriage Law'' and introduced the new dispositions without altering the numbering of the non-modified articles. At the end of the task, the project was sent to the national government, who in turn passed it to the Faculty of Law of the
University of Buenos Aires
The University of Buenos Aires ( es, Universidad de Buenos Aires, UBA) is a public university, public research university in Buenos Aires, Argentina. Established in 1821, it is the premier institution of higher learning in the country and one o ...
to examine it. The Faculty designated a commission, who after the investigation determined that the project introduced reforms in the law doctrine. After asking for a competence extension, the Commission proposed this modifications in 1903, although the project was never dealt with by the Congress.
Reforms
The
rationalist notion that all law should be condensed and comprehensively written in a code was challenged by social, economic and political mutations which imposed a need for the text to be constantly updated. One of the issues that divide the doctrine on this subject is the question of whether it is more convenient to make partial reforms of the code or to completely substitute it with another one.
Until recent times, the Civil Code has only been partially reformed, the most notable reform effort being that associated with Law 17.711. Nevertheless, there have been several projects to replace the Code completely, including one that went so far as to attempt to merge it with the ''Commercial Code''.
Partial reforms
The changes in these laws were made by the court system or by legislative reform, and the ones listed here are only the most influential.
*
Civil marriage
A civil marriage is a marriage performed, recorded, and recognized by a government official. Such a marriage may be performed by a religion, religious body and recognized by the state, or it may be entirely secular.
History
Every country maintai ...
law: The original civil code denied non-
Catholic
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
s the right to
marry
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between t ...
. On November 12, 1888, law number 2,393 provided the right of civil marriage, effective immediately.
*Women's civil right's law. On September 14, 1924, law number 11,357 provided more legal rights for married women.
*Name: The regulation of people's names was addressed as usually by the codifier, as the decrees 11,609/1943 and 410/1946 regulated this institution.
*
Adoption
Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person's biological or legal parent or parents. Legal adoptions permanently transfer all rights and responsibilities, along with filiation, from ...
law: The original civil code did not regulate adoption. On September 23, 1948, law number 13,252 created regulations.
*Law of horizontal property: Vélez Sársfield had forbidden the horizontal subdivision of property, which was overruled by law 13,512 made on September 30, 1948.
*Sales of real estate by installments or sales of fractioned real estate: The Law No. 14,005 regulated the sale by installments of sets of estates, in order to guide the buyers. It was later modified by the Law No. 23,266.
*Land registry and prescription: On October 3 the Law No. 14,159 was sanctioned, establishing rules about the cadastre and the acquisition of real estate by prescription.
*Law about children born inside and outside marriage: Law number 14,367, approved on October 11, 1954, partially removed distinctions between children born inside and outside marriage.
*Regime about minors and family: Law 14,394 of December 30, 1954 modifies the penal regime of the minors, the minimum age to marry, the simple absence and the decease presumption, and incorporated the ''family good'', which cannot been executed by a debt subsequent to the constitution as such. Another special feature of this law is that in its article 31 implements for the first time in the Argentine legislation the divorce, as part of the fight between
Juan Domingo Perón
''Juan'' is a given name, the Spanish and Manx versions of ''John''. It is very common in Spain and in other Spanish-speaking communities around the world and in the Philippines, and also (pronounced differently) in the Isle of Man. In Spanish, t ...
's government and the
Catholic Church
The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with 1.3 billion baptized Catholics worldwide . It is among the world's oldest and largest international institutions, and has played a ...
. After the
Revolución Libertadora
''Revolución Libertadora'' (; ''Liberating Revolution'') was the coup d'état that ended the second presidential term of Juan Perón in Argentina, on 16 September 1955.
Background
President Perón was first elected in 1946. In 1949, a ...
that overthrew Perón, this reform was suspended by the order in council 4070/1956, and later substituted by the law 23,515 in 1987.
*Registry of motor vehicles: The order in council 6582/1958 created the ''National Registry of Motor Vehicles Property'' and made compulsory the registry of the legal businesses which transmitted their property.
*Name of physical persons: The existent regulations about the name were replaced by Law No. 18,248, promulgated on October 28, 1968.
*Adoption: The old law was replaced by law number 19,134 on June 3, 1971.
*Foundations: Foundations had a void in the code, until Law No. 19,386, which came into effect on September 25, 1972, regulated the regime.
*Right of private life: On September 30, 1975, Law No. 21,173 was sanctioned, which included the article 1071 bis on the code regulating said right.
*Transplants: The national regime on
organ transplant
Organ transplantation is a medical procedure in which an organ is removed from one body and placed in the body of a recipient, to replace a damaged or missing organ. The donor and recipient may be at the same location, or organs may be transpo ...
s was determined by Law number 21,541, approved on March 18, 1977.
*Marks and brands: This regime, used for livestock identification, was incorporated to the legislation by means of Law No. 22,939 of October 6, 1983. Previously it was regulated by the rural codes.
*Law of blood: Law No. 22,990 of November 20, 1983 regulates the uses of human blood.
*Filiation and paternity authority: Law No. 23,264 of September 25, 1985 compares the children born outside marriage at the same level to those born within, and establishes that
parental responsibility can be exercised by both parents.
*Civil marriage: Law No. 23,515 modifies the matrimony regime, and reestablishes the divorce, which had been suspended since 1956.
*Pact of San José, Costa Rica: Law No. 23,504 ratified the
American Convention on Human Rights
The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into forc ...
which sought to consolidate human rights.
*Elimination of all kind of woman discrimination: The ratification of the ''Convention about the Elimination of all kinds of Discrimination against Women'' was product of Law No. 23,179.
*Convertibility Law: The so-called ''
Convertibility Law'' fixed the exchange-rate between australs and dollars, and introduced some reforms to the Civil Code's regime. This law, No. 23,928, allowed to convene that the agreed obligations in a foreign currency were to be resolved only in the stipulated currency. This reforms survived the abandoning of the convertibility regime by the Law No. 25,561.
*Law of escrow and leasing: Law No. 24,441 incorporated the contract of
escrow
An escrow is a contractual arrangement in which a third party (the stakeholder or escrow agent) receives and disburses money or property for the primary transacting parties, with the disbursement dependent on conditions agreed to by the transacti ...
and
leasing
A lease is a contractual arrangement calling for the user (referred to as the ''lessee'') to pay the owner (referred to as the ''lessor'') for the use of an asset. Property, buildings and vehicles are common assets that are leased. Industrial ...
, which meant a great advance for the Argentine legislation.
Law No. 17,711
In 1966 the State Secretary Office of Justice designated a commission to evaluate a reform to the Civil Code, without determining whether it should be total or partial. In the beginning the commission was made up of Roberto MartÃnez Ruiz, José Bidau,
Guillermo Borda, Abel Fleitas, José López Olaciregui, Dalmiro Alsina Atienza and Alberto Spota; although after the resignation of the last three, only the doctors Bidau, Fleitas and MartÃnez Ruiz formed the project. Borda occupied at that moment the position of Interior minister, but that didn't stop him from contributing to the project, as the elevation note established, giving "''evidence of the valuable and effective collaboration made by the minister of Interior, the doctor Guillermo A. Borda, who dedicated long hours to the deliberations (of the Commission), in spite of the multiple tasks due to the official duties of the position he currently occupies''"
Law No. 17,711 was sanctioned on April 22, 1968, and came into force on July 1 that same year. This law affects approximately 5% of the Civil Code articles (200 articles in whole), but its importance transcends numbers, as it changes some of the backbone criteria of the established regime.
Among the most important changes, this reform included the theory of
abuse of rights
In civil law jurisdictions, abuse of rights (also known as Prohibition of Chicane) is the exercise of a legal right only to cause annoyance, harm, or injury to another. The abuser is liable for the harm caused by their actions. Some examples of th ...
, the
lesion
A lesion is any damage or abnormal change in the tissue of an organism, usually caused by disease or trauma. ''Lesion'' is derived from the Latin "injury". Lesions may occur in plants as well as animals.
Types
There is no designated classifi ...
vice, the
good faith
In human interactions, good faith ( la, bona fides) is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case ...
principle as the rule for interpretation in contracts, the
theory of unforeseenness, the limitation of the absolute character of the property, the generous repairing of moral damage in the contractual and extra-contractual civil responsibility, the possibility of reducing the compensation in the forced crimes, the solidarity of the co-authors of forced crimes, the automatic delay as a rule in obligations with deadlines, the implicit resolutory condition in contracts, the registry inscription as publicity for the transmission of
property rights
The right to property, or the right to own property (cf. ownership) is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typically ...
on real estate, the protection of third parties with good faith sub-acquirants of property or personal rights in case of nullity, the acquisition of age at 21, the
emancipation
Emancipation generally means to free a person from a previous restraint or legal disability. More broadly, it is also used for efforts to procure economic and social rights, political rights or equality, often for a specifically disenfranchis ...
by age abilitation, the extension of the capacity of the working minor, the personal separation by joint proposal and modification of the succession order.
Although not all the doctrine agreed then with the changes made by the law, which gave it many criticisms, time proved that the reform was an important advance in the Argentine civil legislation.
Integral Reform Projects
Bibiloni Draft
This was the first project for integral reform of the Civil Code, which took place in 1926. This project was begun by the Law No. 12,542 and then expanded by 13,156, which established a committee formed by a member designated by the
Supreme Court of Argentina
The Supreme Court of Argentina ( es, link=no, Corte Suprema de Argentina), officially known as the Supreme Court of Justice of the Argentine Nation ( es, link=no, Corte Suprema de Justicia de la Nación Argentina, CSJN), is the highest court of l ...
, another member by the National Academy of Legal Science (''Academia Nacional de Ciencias JurÃdicas''), designated by each of the Civil Courts (''Cámaras Civiles'') of the
Nation's Capital, another member by the
Bar Association
A bar association is a professional association of lawyers as generally organized in countries following the Anglo-American types of jurisprudence. The word bar is derived from the old English/European custom of using a physical railing to separ ...
and another by the department of Right (''facultades de Derecho'') of the national universities of
Buenos Aires
Buenos Aires ( or ; ), officially the Autonomous City of Buenos Aires ( es, link=no, Ciudad Autónoma de Buenos Aires), is the capital and primate city of Argentina. The city is located on the western shore of the RÃo de la Plata, on South ...
,
Córdoba,
La Plata
La Plata () is the capital city of Buenos Aires Province, Argentina. According to the , it has a population of 654,324 and its metropolitan area, the Greater La Plata, has 787,294 inhabitants. It is located 9 kilometers (6 miles) inland from th ...
, and
del Litoral.
The resulting committee was formed by Roberto Repetto, Julián Pera, Raymundo Salvat, Juan Bibiloni, Héctor Lafaille, Enrique MartÃnez Paz, Juan Carlos Rébora, José Gervasoni and Rodolfo Rivarola. This committee suffered a few changes, as Salvat resigned and was replaced by César de Tezanos Pinto, while Pera, who ascended to the position of minister of the Supreme Court, was replaced at first by Mariano de Vedia y Mitre and then by Gastón Tobal.
Doctor Bibiloni was commissioned the writing of the draft, which would serve as an orientation for debates. Bibiloni finished in six years, but while he was working different books with the same purpose were being published, similar to
Dalmacio Vélez Sársfield's bill. Because of this, the committee had started to have debates since 1926 and not 1932.
This draft has a great influence in German judicial science, not only directly in the
German Civil Code
German(s) may refer to:
* Germany (of or related to)
**Germania (historical use)
* Germans, citizens of Germany, people of German ancestry, or native speakers of the German language
** For citizens of Germany, see also German nationality law
**Ger ...
, but also through its commentaries. The code also used the same doctoring tool as Vélez Sársfield, the inclusion of footnotes to establish resolutions.
Draft of 1936
The commission utilized the first draft edited by Bibiloni, but expanded it into a draft law which had great differences with Bibiloni's. Once finished with the first draft, the commission designated Lafaille and Tobal as editors, who sometimes disagreed with what was decided by the commission, and they managed to finish the draft in 1936. In spite of the changes made, the draft was signed by the editors and by Repetto, Rivarola and MartÃnez Paz.
As far as its methodology, the draft contained a ''General Section'', in which it deals with people, the facts, the things, the practising of the rights and the prescription; and four books in which it deals with the family, the obligations and their sources, the real rights and the succession, and finally it features a law of registries.
The whole of the articles of the project is relatively brief; it had 2,144 articles. Each article grouped in several paragraphs the solution to the issues related with the subject that was dealt with in the article, which made them dense but facilitated their study.
After the conclusion of editing in 1936, the draft was sent to the National Executive Power on October 10 of that year. The Executive Power sent the draft to
Congress
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
, but it was never ratified.
1954 Draft
The draft for the Civil Code was written in 1954 by the "Institute of Civil Right" (''Instituto de Derecho Civil''), dependent on the Ministry of Justice.
Jorge JoaquÃn LlambÃas was the head of the project, with Roberto Ponssa, Jorge Mazzinghi, Jorge Bargalló Cirio and Ricardo Alberdi as collaborators.
The draft contained 1,839 articles, a very small number in comparison with the present Civil Code and other previous projects. Such synthesis was achieved by omitting the repetition of general principles, and defining only the differences to those general principles in the description of the code for particular institutions.
The used method contains a Preliminary Title, which consists of three chapters with the general resolution, norm on private international law, and the computation of time periods. Divided in five books, Book I deals with the general principles, the persons, property, facts and juridical acts; Book II with the family, Book III deals with inheritance; Book IV with the obligations and Book V regulates the real and intellectual rights.
Because of the ''
Revolución Libertadora
''Revolución Libertadora'' (; ''Liberating Revolution'') was the coup d'état that ended the second presidential term of Juan Perón in Argentina, on 16 September 1955.
Background
President Perón was first elected in 1946. In 1949, a ...
'' coup d'état, the project never reached legislative treatment, and remained inedited until 1968, when it was edited by the
Universidad Nacional de Tucumán
Universidad (Spanish for "university") may refer to:
Places
* Universidad, San Juan, Puerto Rico
* Universidad (Madrid)
Football clubs
* Universidad SC, a Guatemalan football club that represents the Universidad de San Carlos de Guatemala
...
.
Project of legislative unification
Article 75 of the
Argentine Constitution
The Constitution of the Argentine Nation ( es, Constitución de la Nación Argentina) is the basic governing document of Argentina, and the primary source of existing law in Argentina. Its first version was written in 1853 by a constitutional ...
, at section 12, empowers the
Argentine National Congress
The Congress of the Argentine Nation ( es, Congreso de la Nación Argentina) is the legislative branch of the government of Argentina. Its composition is bicameral, constituted by a 72-seat Senate and a 257-seat Chamber of Deputies. The Senate ...
to dictate the Civil, Commercial, Penal, Mining and Work, and Social Security codes. Because of this, part of the doctrine sustained that the Constitution obstructed the legislative unification. Nevertheless, the authors argued that it is not written in which way it should be done, be it by one single body or more.
In 1986, the General Legislative Commission of the
Chamber of Deputies
The chamber of deputies is the lower house in many bicameral legislatures and the sole house in some unicameral legislatures.
Description
Historically, French Chamber of Deputies was the lower house of the French Parliament during the Bourbon R ...
created a committee for the "unification of the civil and commercial legislation", designing Héctor AlegrÃa, Atilio Alterini, Jorge Alterini, Miguel Araya, Francisco de la Vega, Sergio Le Pera and Ana Piaggi as advisors, to whom would later join Horacio Fargosi.
On April 22, 1987, the project was raised, and on July 15 sanctioned by the Chamber of Deputies. The project moved on to the
Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
, where a temporary commission was formed, which made several reforms, but didn't arrive to a conclusive judgement since its duration was not renovated after the originally intended six months.
At the end of 1991 the law was sanctioned with no modifications by the Senate, but later the Executive Power, considering it inadequate to the new political and economical situation, decided to veto it.
Código Civil y Comercial de la Nación
After decades of deliberations, a new code - ''Código Civil y Comercial de la Nación'' - was approved in 2014 and entered into force in 2015, replacing the old code.
References
Notes
External links
Código Civil Argentino(Spanish)
History of the Argentine Law(Spanish)
(Spanish)
{{Argentina topics
Law of Argentina
Argentine Civil Code
The Civil Code of Argentina was the legal code in force between 1871 and 2015,
which formed the foundation of the system of civil law in Argentina. It was written by Dalmacio Vélez Sársfield, as the culmination of a series of attempts to co ...
Legal codes of Argentina