Civil Code of Argentina
Encyclopedia
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
which forms the foundation of the system
Legal systems of the world
The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
in Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
. It was written by Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield was an Argentine lawyer and politician who wrote the Argentine Civil Code of 1869, the vast majority of which remains in use to this day.-Life and times:...
, 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 still continues to be the foundation of Argentine civil law (Derecho civil argentino).
Vélez Sársfield's code reflects the influence of the continental law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and liberal principles of the 17th century. It was also influenced by the great Napoleonic code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
, the Spanish laws in effect at that time in Argentina, Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
(especially through the work of Savigny
Friedrich Carl von Savigny
Friedrich Carl von Savigny was one of the most respected and influential 19th-century jurists and historians.-Early life and education:...
), canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
, the draft of the Brazilian civil code (Esboço de um Código Civil para Brasil) by Freitas
Augusto Teixeira de Freitas
Augusto Teixeira de Freitas 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 and jurisconsult...
, and the influence of the Chilean civil code (by Andrés Bello
Andrés Bello
Andrés de Jesús María y José Bello López was a Venezuelan humanist, poet, lawmaker, philosopher, educator and philologist, whose political and literary works constitute an important part of Spanish American culture...
).
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
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, 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 even proposed to merge the civil code with the commercial code, following the example of the Italian code
Constitution of Italy
The Constitution of the Italian Republic was enacted by the Constituent Assembly on 22 December 1947, with 453 votes in favour and 62 against. The text, which has since been amended 13 times, was promulgated in the extraordinary edition of Gazzetta Ufficiale No. 298 on 27 December 1947...
.
Precursors
The unification of the country and its political growth and strengthening demanded the codification of the civil laws
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, 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
Juan Gregorio de las Heras
Grand Marshal Juan Gregorio de Las Heras was an Argentine soldier who took part in the Spanish American wars of independence and was also a governor of the province of Buenos Aires.-Biography:...
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
Buenos Aires is the capital and largest city of Argentina, and the second-largest metropolitan area in South America, after São Paulo. It is located on the western shore of the estuary of the Río de la Plata, on the southeastern coast of the South American continent...
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
Justo José de Urquiza y García was an Argentine general and politician. He was president of the Argentine Confederation from 1854 to 1860.He was governor of Entre Ríos during the government of Juan Manuel de Rosas, governor of Buenos Aires with powers delegated from the other provinces...
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 from the Argentine Confederacy, prevented this project from making any concrete progress.
The Argentine Constitution of 1853
Argentine Constitution of 1853
The Argentine Constitution of 1853 was the first constitution of Argentina, approved with the support of the governments of the provinces —though without that of the Buenos Aires Province, who remained separated of the Argentine Confederation until 1859, after several modifications to the...
, in clause 11 of article 67, authorized the Argentine National Congress to draw up the Civil, Commercial, Penal and Mining Codes. With the intent of fulfilling this constitutional mandate, Facundo Zuviría brought before the Senate 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
Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield was an Argentine lawyer and politician who wrote the Argentine Civil Code of 1869, the vast majority of which remains in use to this day.-Life and times:...
and Eduardo Acevedo, 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
May Revolution
The May Revolution 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 Río de la Plata, a Spanish colony that included roughly the territories of present-day Argentina, Bolivia, Paraguay and Uruguay...
, 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 (Royal Jurisdiction), the Ordenamiento de Alcalá
Ordenamiento de Alcalá
The Ordenamiento de Alcalá is a collection of 58 laws enacted by the courts of Alfonso XI in Alcalá de Henares in 1348. They are an important part of the principal legislative body of the Castilian Crown during the low Middle Ages until the 1505 Leyes de Toro....
(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 JuzgoFuero JuzgoThe Fuero Juzgo was a codex of Spanish laws enacted in Castile in 1241 by Fernando III. It is essentially a translation of the Liber Iudiciorum that was formulated in 654 by the Visigoths....
, - 4th Fuero viejo de Castilla (Old Fuero of Castile),
- 5th the Partidas.
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
Emancipation means the act of setting an individual or social group free or making equal to citizens in a political society.Emancipation may also refer to:* Emancipation , a champion Australian thoroughbred racehorse foaled in 1979...
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 (Libertad de Vientres) and of the slaves entering the territory (1813), the suppression of entailed states (mayorazgo) (1813) and of emphyteusis
Emphyteusis
The Law of Emphyteusis is a right, susceptible of assignment and of descent, charged on productive real estate, the right being coupled with the enjoyment of the property on condition of taking care of the estate and paying taxes, and sometimes the payment of a small rent.Akin to a system of...
(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 Province
The Province of Buenos Aires is the largest and most populous province of Argentina. It takes the name from the city of Buenos Aires, which used to be the provincial capital until it was federalized in 1880...
on November 17 of 1824, by Tucumán
Tucumán Province
Tucumán is the most densely populated, and the smallest by land area, of the provinces of Argentina. Located in the northwest of the country, the capital is San Miguel de Tucumán, often shortened to Tucumán. Neighboring provinces are, clockwise from the north: Salta, Santiago del Estero and...
on September 1 of 1860 and by Entre Ríos
Entre Ríos Province
Entre Ríos is a northeastern province of Argentina, located in the Mesopotamia region. It borders the provinces of Buenos Aires , Corrientes and Santa Fe , and Uruguay in the east....
on March 10 of 1866); the determination of domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
in the main estate (dictated by Buenos Aires on September 16 of 1859), about books of births, matrimonies and deaths, being the parish priests in charge (dictated by Buenos Aires on December 19 of 1821, by Jujuy on September 7 of 1836 and by Santa Fe on May 17 of 1862); about restrictions and limits to the domains (dictated by Buenos Aires on July 27 of 1865, by Jujuy on February 1855 and March 7 of 1857, and by Córdoba on August 27 of 1868); and of the renting of fields (dictated by Santa Fe on July 31 of 1837).
Sanction
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
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 or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
.
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
Provinces of Argentina
Argentina is subdivided into twenty-three provinces and one autonomous city...
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 N° 36, sponsored by deputy José María Cabral from Corrientes Province
Corrientes Province
Corrientes is a province in northeast Argentina, in the Mesopotamia region. It is surrounded by : Paraguay, the province of Misiones, Brazil, Uruguay, and the provinces of Entre Rios, Santa Fe and Chaco.-History:...
, was passed, which empowered the executive branch
Executive Power
Executive Power is Vince Flynn's fifth novel, and the fourth to feature Mitch Rapp, an American agent that works for the CIA as an operative for a covert counter terrorism unit called the "Orion Team."-Plot summary:...
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
President of Argentina
The President of the Argentine Nation , usually known as the President of Argentina, is the head of state of Argentina. Under the national Constitution, the President is also the chief executive of the federal government and Commander-in-Chief of the armed forces.Through Argentine history, the...
Bartolomé Mitre
Bartolomé Mitre
Bartolomé Mitre Martínez was an Argentine statesman, military figure, and author. He was the President of Argentina from 1862 to 1868.-Life and times:...
decided to put a single person in charge, Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield was an Argentine lawyer and politician who wrote the Argentine Civil Code of 1869, the vast majority of which remains in use to this day.-Life and times:...
, through a decree dated October 20, 1864.
Victorino de la Plaza
Victorino de la Plaza y Palacios was President of Argentina from 9 August 1914 to 11 October 1916.Second son of José Roque Mariano de la Plaza Elejalde and Manuela de la Silva Palacios; his older brother, Rafael de la Plaza, was also a politician and acted as governor of Santiago del Estero...
, who later would become president, Eduardo Díaz 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
Buenos Aires is the capital and largest city of Argentina, and the second-largest metropolitan area in South America, after São Paulo. It is located on the western shore of the estuary of the Río de la Plata, on the southeastern coast of the South American continent...
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.
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
Domingo Faustino Sarmiento was an Argentine activist, intellectual, writer, statesman and the seventh President of Argentina. His writing spanned a wide range of genres and topics, from journalism to autobiography, to political philosophy and history...
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 Llambías 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 SársfieldDalmacio Vélez Sársfield
Dalmacio Vélez Sársfield was an Argentine lawyer and politician who wrote the Argentine Civil Code of 1869, the vast majority of which remains in use to this day.-Life and times:...
was inspired by contemporary and older codes, by national and international law, and to a large extent by the prevailing doctrine
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
s of the period. These sources can be classified as follows: Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, Spanish and Argentine law, canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
, the Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
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 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 propertyProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
transmitted by "tradition
Tradition
A tradition is a ritual, belief or object passed down within a society, still maintained in the present, with origins in the past. Common examples include holidays or impractical but socially meaningful clothes , but the idea has also been applied to social norms such as greetings...
", 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 Karl von Savigny with his work "System of the present Roman law" (System des heutigen römischen Rechts), used especially referring to legal entities, obligations, property and possession, and the adoption of the domicile
Domicile
*In architecture, a general term for a place of residence or "permanent residence" in legal terms*Domicile , the zodiac sign over which a planet has rulership...
principle as a determining element of the law, applicable to the people's status
Marital status
A person's marital status indicates whether the person is married. Questions about marital status appear on many polls and forms, including censuses and credit card applications.In the simplest sense, the only possible answers are "single" or "married"...
and capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
.
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 AlberdiJuan Bautista Alberdi
Juan Bautista Alberdi was an Argentine political theorist and diplomat. Although he lived most of his life in exile in Montevideo and Chile, he was one of the most influential Argentine liberals of his age.-Biography:...
, 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 Province
The Province of Buenos Aires is the largest and most populous province of Argentina. It takes the name from the city of Buenos Aires, which used to be the provincial capital until it was federalized in 1880...
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 lawCanon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
had a large influence over family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, especially in the area of matrimony. Vélez Sársfield left matrimony under the jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
of the Catholic Church, 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
Santa Fe Province
The Invincible Province of Santa Fe, in Spanish Provincia Invencible de Santa Fe , is a province of Argentina, located in the center-east of the country. Neighboring provinces are from the north clockwise Chaco , Corrientes, Entre Ríos, Buenos Aires, Córdoba, and Santiago del Estero...
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
Charles Aubry 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....
and Frédéric Charles Rau, specially the third edition published in Paris between 1856 to 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 ffor 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 FreitasAugusto Teixeira de Freitas
Augusto Teixeira de Freitas 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 and jurisconsult...
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 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
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
, the most influent code was the Chilean Civil Code, promulgated on 1855 and written by lawman Andrés Bello
Andrés Bello
Andrés de Jesús María y José Bello López was a Venezuelan humanist, poet, lawmaker, philosopher, educator and philologist, whose political and literary works constitute an important part of Spanish American culture...
. 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
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, in which he based for the creation of 52 articles, of the Albertine Code for the Sardonic States, of the legislative Russian consolidation, the Code of Parma, the Code of Two Sicilies, the General Prussian
Old Prussians
The Old Prussians or Baltic Prussians were an ethnic group, autochthonous Baltic tribes that inhabited Prussia, the lands of the southeastern Baltic Sea in the area around the Vistula and Curonian Lagoons...
Code of 1874, the Austrian Code of 1811, the Code of Nueva York State and the Italian Code of 1865.
Vélez Sársfield made also use of the 1851 project for the Spanish Civil Code prepared by Florencio García Goyena
Florencio García Goyena
Florencio García Goyena was a Spanish jurist.García 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, Granada and Zaragoza. A liberal, he went into French exile from 1823 to 1834...
. 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 Uruguay
Uruguay
Uruguay ,officially the Oriental Republic of Uruguay,sometimes the Eastern Republic of Uruguay; ) is a country in the southeastern part of South America. It is home to some 3.5 million people, of whom 1.8 million live in the capital Montevideo and its metropolitan area...
an Civil Code by Eduardo Acevedo, 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
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...
's Institutiones and of the French civil code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
, he decided to use the one followed by Freitas in his Consolidaçao das Leis Civis, which finds its origins in the teachings of Friedrich Karl von Savigny.
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
Person
A person is a human being, or an entity that has certain capacities or attributes strongly associated with being human , for example in a particular moral or legal context...
"). But, as men don't live isolated but in their family's bosom, it must be continued with the Family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
. Then the individual enters the civil life and establishes links person-to-person: the "obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
", or person-to-the-things submitted to him: the "real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
". Finally it must be legislated about the theory of estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
, with the "successions
Order of succession
An order of succession is a formula or algorithm that determines who inherits an office upon the death, resignation, or removal of its current occupant.-Monarchies and nobility:...
" and the "theory of privileges". To end, the institution of prescriptions
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
, 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 contractContractA contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s. - 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 prescriptionPrescription (law)In law, prescription is the method of sovereignty transfer of a territory through international law analogous to the common law doctrine of adverse possession for private real-estate...
.
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 faultCulpaCulpa is a Latin or Spanish word meaning guilt or fault.It may also be referring to:*Mea Culpa, the Latin phrase for "it is my fault"*Culpa , a Cuban film directed by Jorge Molina...
. 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 reaMens reaMens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, 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 lawFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
was grounded in the concept of indissoluble matrimonyMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, 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-CatholicsRoman Catholic ChurchThe Catholic Church, also known as the Roman Catholic Church, is the world's largest Christian church, with over a billion members. Led by the Pope, it defines its mission as spreading the gospel of Jesus Christ, administering the sacraments and exercising charity...
, who had only gained the right to marry in 1888, with the reform imposed by Law N° 2.393.
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 García, 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
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
Domingo Faustino Sarmiento was an Argentine activist, intellectual, writer, statesman and the seventh President of Argentina. His writing spanned a wide range of genres and topics, from journalism to autobiography, to political philosophy and history...
'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
Victorino de la Plaza y Palacios was President of Argentina from 9 August 1914 to 11 October 1916.Second son of José Roque Mariano de la Plaza Elejalde and Manuela de la Silva Palacios; his older brother, Rafael de la Plaza, was also a politician and acted as governor of Santiago del Estero...
and Aurelio Prado were appointed to compare both versions and report on the existing differences. While they were doing so, on 1 January 1871 President Sarmiento's decree declared the Buenos Aires
Buenos Aires
Buenos Aires is the capital and largest city of Argentina, and the second-largest metropolitan area in South America, after São Paulo. It is located on the western shore of the estuary of the Río de la Plata, on the southeastern coast of the South American continent...
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 Benjamín 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 of 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 (law)
In law, paternity is the legal acknowledgment of the parental relationship between a man and a child usually based on several factors.At common law, a child born to the wife during a marriage is the husband's child under the "presumption of legitimacy", and the husband is assigned complete rights,...
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
University of Buenos Aires
The University of Buenos Aires is the largest university in Argentina and the largest university by enrollment in Latin America. Founded on August 12, 1821 in the city of Buenos Aires, it consists of 13 faculties, 6 hospitals, 10 museums and is linked to 4 high schools: Colegio Nacional de Buenos...
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 marriageCivil marriageCivil marriage is marriage performed by a government official and not a religious organization.-History:Every country maintaining a population registry of its residents keeps track of marital status, and most countries believe that it is their responsibility to register married couples. Most...
law: The original civil code denied non-Catholics the right to marry. 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.
- AdoptionAdoptionAdoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
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 11 October 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's government and the Catholic Church. After the Revolución LibertadoraRevolución LibertadoraThe Revolución Libertadora was a military uprising that ended the second presidential term of Juan Perón in Argentina, on September 16, 1955.-History:...
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 transplantOrgan transplantOrgan transplantation is the moving of an organ from one body to another or from a donor site on the patient's own body, for the purpose of replacing the recipient's damaged or absent organ. The emerging field of regenerative medicine is allowing scientists and engineers to create organs to be...
s was determined by Law number 21,541, approved on 18 March 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 responsibilityParental responsibility (access and custody)In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
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 RightsAmerican Convention on Human RightsThe American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...
which sought to consolidate human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. - 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 pacted 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 escrowEscrowAn escrow is:* an arrangement made under contractual provisions between transacting parties, whereby an independent trusted third party receives and disburses money and/or documents for the transacting parties, with the timing of such disbursement by the third party dependent on the fulfillment of...
and leasingLeasingLeasing is a process by which a firm can obtain the use of a certain fixed assets for which it must pay a series of contractual, periodic, tax deductible payments....
, 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 Martínez 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 Martínez 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 trascends 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, the lesion
Lesion
A lesion is any abnormality in the tissue of an organism , usually caused by disease or trauma. Lesion is derived from the Latin word laesio which means injury.- Types :...
vice, the good faith
Good faith
In philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
principle as the rule for interpretation in contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s, 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
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
on real estate
Real estate
In general use, esp. North American, 'real estate' is taken to mean "Property consisting of land and the buildings on it, along with its natural resources such as crops, minerals, or water; immovable property of this nature; an interest vested in this; an item of real property; buildings or...
, 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
Emancipation means the act of setting an individual or social group free or making equal to citizens in a political society.Emancipation may also refer to:* Emancipation , a champion Australian thoroughbred racehorse foaled in 1979...
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.
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 ArgentinaSupreme Court of Argentina
The Supreme Court of Argentina is the highest court of law of the Argentine Republic. It was inaugurated on 15 January 1863. However, during much of the 20th century, the Court and, in general, the Argentine judicial system, has lacked autonomy from the executive power...
, another member by the National Academy of Legal Science (Academia Nacional de Ciencias Jurídicas), designated by each of the Civil Courts (Cámaras Civiles) of the Nation's Capital
Buenos Aires
Buenos Aires is the capital and largest city of Argentina, and the second-largest metropolitan area in South America, after São Paulo. It is located on the western shore of the estuary of the Río de la Plata, on the southeastern coast of the South American continent...
, another member by the Bar Association
Bar association
A bar association is a professional body of lawyers. Some bar associations are responsible for the regulation of the legal profession in their jurisdiction; others are professional organizations dedicated to serving their members; in many cases, they are both...
and another by the department of Right (facultades de Derecho) of the national universities of Buenos Aires
University of Buenos Aires
The University of Buenos Aires is the largest university in Argentina and the largest university by enrollment in Latin America. Founded on August 12, 1821 in the city of Buenos Aires, it consists of 13 faculties, 6 hospitals, 10 museums and is linked to 4 high schools: Colegio Nacional de Buenos...
, Córdoba
National University of Córdoba
The National University of Córdoba, , is the oldest university in Argentina, and one of the oldest in the Americas. It is located in Córdoba, the capital of Córdoba Province. Since the early 20th century it has been the second largest university in the country in terms of the number of students,...
, La Plata, and del Litoral
National University of the Littoral
The National University of the Littoral is a university in Argentina. It is based in Santa Fe, the capital of the province of the same name, and it has colleges and other academic facilities in Esperanza, Reconquista and Gálvez, also in Santa Fe Province.-History:The original institution was...
.
The resulting committee was formed by Roberto Repetto, Julián Pera, Raymundo Salvat, Juan Bibiloni, Héctor Lafaille, Enrique Martínez 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
Dalmacio Vélez Sársfield
Dalmacio Vélez Sársfield was an Argentine lawyer and politician who wrote the Argentine Civil Code of 1869, the vast majority of which remains in use to this day.-Life and times:...
'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, 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 Martínez 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 prescrition; 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, 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 Joaquín Llambías 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
The Revolución Libertadora was a military uprising that ended the second presidential term of Juan Perón in Argentina, on September 16, 1955.-History:...
coup d'état
Coup d'état
A coup d'état state, literally: strike/blow of state)—also known as a coup, putsch, and overthrow—is the sudden, extrajudicial deposition of a government, usually by a small group of the existing state establishment—typically the military—to replace the deposed government with another body; either...
, the project never reached legislative treatment, and remained inedited until 1968, when it was edited by the Universidad Nacional de Tucumán
Universidad Nacional de Tucumán
The National University of Tucumán is a national university in the Tucumán Province, in the northwest region of Argentina.-General information:...
.
Project of legislative unification
Article 75 of the Argentine ConstitutionConstitution of Argentina
The constitution of Argentina is one of the primary sources of existing law in Argentina. Its first version was written in 1853 by a Constitutional Assembly gathered in Santa Fe, and the doctrinal basis was taken in part from the United States Constitution...
, at section 12, empowers the Argentine National Congress
Argentine National Congress
The Congress of the Argentine Nation 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....
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
Argentine Chamber of Deputies
The Chamber of Deputies is the lower house of the Argentine National Congress. This Chamber holds exclusive rights to create taxes, to draft troops, and to accuse the President, the ministers and the members of the Supreme Court before the Senate....
created a committee for the "unification of the civil and commercial legislation", designing Héctor Alegría, 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
Argentine Senate
The Argentine Senate is the upper house of the Argentine National Congress. It has 72 senators: three for each province and three for the Autonomous City of Buenos Aires...
, 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.
External links
- Código Civil Argentino (Spanish)
- History of the Argentine Law (Spanish)
- Civil code, history and reforms (Spanish)