The Civil and Commercial Code of the Nation has been put into effect five years ago, in 2015.<\/p>\n
That process involved a huge amount of consensus. Let us remember the frustrations in the previous projects, and the impossibility of sanctioning other basic codes in an Argentina\u00a0characterized by individual triumphs and collective failures. This work required an extraordinary effort of dialogues and the search for balances that were truly exceptional.<\/p>\n
Its sanction has caused a great deal of transformation in the private law field due to the reception of great principles related to the protection of the persons, their freedoms, their\u00a0assets, the environment, gender equality, families, contracts, economic activity, companies\u00a0and consumers.<\/p>\n
Its application will be essential in order to resolve some of the conflicts that the development of future economic activity will cause, in the context of the post-pandemic crisis.<\/p>\n
As it has been demonstrated in the past, it is necessary to take into account two types of phenomena that occur during emergencies: how property rights are protected and how\u00a0contracts adapt to changes.<\/p>\n
Both aspects have been widely considered.<\/p>\n
The constitutional protection of the contract<\/strong><\/p>\n The code establishes that the “rights resulting from contracts integrate the property right of the contractor” (art 965).<\/p>\n History reveals that, during emergencies, not only the bases of the contract have been altered, but also its content, since the legislator rewrote the texts.<\/p>\n Hence, as the Supreme Court claimed, its protection is important, which \u201cincludes both the freedom to contract, which is an aspect of personal autonomy and is part of every citizen\u2019s\u00a0constitutional right (art. 19 of the Argentine Constitution), as well as the right to configure the\u00a0content of the contract, which is an assumption of the right to exercise a lawful industry (art.\u00a014 of the Argentine Constitution.) and economic freedom within competitive relations (art. 43\u00a0of the Argentine Constitution). The freedom to contract, to compete and to configure the\u00a0content of a contract constitute a legal position that this Court must protect due to its role as\u00a0a Court of constitutional guarantees. In this sense, the term \u2018property\u2019 must be interpreted\u00a0from a constitutional perspective (art. 17 of the Argentine Constitution). “As a consequence,\u00a0anyone who seeks to restrict constitutionally established property rights has the\u00a0argumentative burden of justifying the legitimacy of their decision.”<\/p>\n The freedom to contract consequently has constitutional protection, and can only be regulated following principles that ensure proportionality and non-denaturation.<\/p>\n Contract renegotiation<\/strong><\/p>\n Economic crises often have an impact on prices, payment terms and clauses of all kinds that are agreed during \u201cnormal\u201d economic periods of times, all of which often requires\u00a0renegotiation.<\/p>\n The Code establishes important principles and rules: keeping the contract\u2019s clauses (art. 1066); protection of confidence (art. 1067); good faith (arts. 729 and 961); prevention of\u00a0contractual damage (arts. 1031, 1032 and 1710); the non-aggravation and mitigation of the\u00a0damage already caused (art. 1710, inc. b and c); contractual predictability (art. 1728); good\u00a0faith and non-abusiveness in demanding compliance (art. 1732); the equitable adaptation of\u00a0the contract when, due to circumstances beyond the control of the parties and due to its\u00a0conclusion, an excessive onerousness is produced, injuring or frustrating the final cause of In that order of things, in duration contracts, in which the parties are linked through time with a constant flow of reciprocal benefits, there is a duty to give the other party a reasonable opportunity to renegotiate in good faith, without incurring in the abusive exercise of rights\u00a0(art. 1011 of the CCyC).<\/p>\n The Code takes into consideration the situation of contractors whose agreements are, beyond the risk assumed, immersed in extraordinary circumstances in relation to those\u00a0existing at the moment of the contract\u2019s celebration, allowing the affected contractor to\u00a0request the total or partial termination of the contract, or an “equitable readjustment” of the originally agreed benefits (art. 1091).<\/p>\n Many contracts have been suddenly affected by the situation stemming from the pandemic.<\/p>\n They are cases of contracts in which, due to their object and purpose, their fulfillment (even if possible) has lost its reason for being, and therefore, the affected party has lawful actions In any case, a capital rule of contractual legal relationships is that the debtor and creditor must act with care, foresight and according to the requirements of good faith (art. 729), respecting the trust and loyalty that the parties must reciprocally give to each other ( art.\u00a01067).<\/p>\n In conclusion, this Code, which represents the original thinking of Argentine doctrine and jurisprudence, has provided useful and practical solutions, even for exceptional situations.<\/p>\n Numerous scientific meetings have been held, which have reflected on the legal system that we Argentines have built with so much community effort.<\/p>\n It is a new era for future generations.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" The Civil and Commercial Code of the Nation has been put into effect five years ago, in 2015. That process involved a huge amount of…<\/p>\n
\nthe contract (arts. 332, 1090, 1075, 1091 and cc.).<\/p>\n
\nagainst it(art. 1090).<\/p>\n