Abstract
This paper originates in the report submitted to the Intermediate Congress of the International Academy of Comparative Law, which took place in Taiwan in May 2012 under the heading “Scope and Structure of the Civil Codes”. However, this is in fact a different paper because in between the preparation of such paper and today, Argentina has decisively advanced towards the enactment of a new Civil and Commercial Code. Hence, this paper will mainly refer to the presentation of the Civil and Commercial Code Draft which will probably have been passed by Congress by the time this book gets to the readers.
The first few pages will be covering introductory matters to focus then our analysis on the Draft and we will respond the suggested topics from this perspective.
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Notes
- 1.
Buenos Aires was first founded in 1536 and Santiago del Estero in 1550. The land was only partially occupied by the original inhabitants of scarce population and of a highly primitive nature. It was part of the Viceroyalty of Peru until August 1st 1776 when the Viceroyalty of Rio de la Plata was created.
- 2.
In 1853 the Constitution which creates the Argentine Confederation is enacted, but the Province of Buenos Aires does not incorporate to it and remains separated from the Confederation as the State of Buenos Aires until the 1860 Constitutional Reform. As a result of this Reform, the term Confederation is no longer used and Argentina organizes as a Federal State.
- 3.
Article 67, section 11 of the original text; article 75, section 12 of the text reformed in 1994.
- 4.
V. Rescigno, Pietro, Dalmacio Vélez Sarsfield codificatore, en Dalmacio Vélez Sarsfield e il diritto latinoamericano, a cura di Sandro Schipani, Atti del congreso Internazionale, Roma, march 1986, page 27.
- 5.
All editions of the Argentine Civil Code have a special feature: they include the notes that Vélez wrote as he advanced on the texts; in such notes he included the authors or legal bodies he consulted and were his sources, pointing out similarities and differences with them; and on some occasions he justified the draft as an article of the Code. Although the notes have not been passed by the Federal Congress, they are regarded as a valuable tool in the interpretation of the Code.
- 6.
V. Casiello, Juan José, “Memorando la reforma civil de 1968”, LL 28.11.08.
- 7.
V. Rosales, Pablo O. – Villaverde, María Silvia, Salud Sexual y Procreación Responsable, Bs. As., 2009.
- 8.
Rivera, Julio César, “Codificación, descodificación, recodificación”, not published, to appear in Revista de Derecho privado y Comunitario.
- 9.
Article 75 (22) “To approve or reject treaties concluded with other nations and international organizations, and concordats with the Holy See. Treaties and concordats have a higher hierarchy than laws.
The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. They shall only be denounced, in such event, by the National Executive Power after the approval of two-thirds of all the members of each House.
In order to attain constitutional hierarchy, the other treaties and conventions on human rights shall require the vote of two-thirds of all the members of each House, after their approval by Congress.”
- 10.
CSN, Arriola, 25.8.09; in Zaffaroni’s vote in this same case Estrada was quoted: “… article 19 clearly separates law and individual morality, making a distinction, once and forever, between the State that imposes a morality and that which respects the moral freedom of the individual; the first he calls “pagan and socialist” and the second “Christian and liberal””.
- 11.
CSN, “Asociación Lucha por la Identidad Travesti – Transexual c. Inspección General de Justicia”, 21.11.06, Fallos 329:5266.
- 12.
The subject was dealt with in the International Congress of Family Law held in Mendoza in 1998.
- 13.
Junyent Bas, Francisco, “La “difuminación” de la comercialidad en el Proyecto de Código Civil y Comercial y la necesidad de una relectura completa. A propósito del nuevo rol de la empresa y el quehacer mercantil”, Rev. Derecho Comercial, del Consumidor y de la Empresa, LL, Octubre 2012, ps. 3–28.
- 14.
Uzal, María Elsa, “Breve panorama de la reforma del derecho internacional privado”, in Rivera, Julio C. (dir.) – Medina, Graciela (coord.), Comentarios al Proyecto de Código Civil y Comercial de 2012, Abeledo Perrot, Bs. As., 2012, p. 1233.
- 15.
Uzal, ob. cit., p. 1235.
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Medina, G. (2013). Argentina on the Eve of a New Civil and Commercial Code. In: Rivera, J. (eds) The Scope and Structure of Civil Codes. Ius Gentium: Comparative Perspectives on Law and Justice, vol 32. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7942-6_2
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DOI: https://doi.org/10.1007/978-94-007-7942-6_2
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