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 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 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 (especially through the work of Savigny), canon law, the draft of the Brazilian civil code (Esboço de um Código Civil para Brasil) by Freitas, and the influence of the Chilean Civil Code (by Andrés Bello).
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 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 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, 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.Zorraquín Becú (1952). ps. 60 y ss. However, the Commercial Code had better luck. The task of compiling that code had been given to Dalmacio Vélez Sársfield and Eduardo Acevedo Maturana, 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, 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 (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. 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 lets endure the previous private Law until the new State arranges otherwise, in exercise of its sovereignty.Cabral Texo (1920). p. 1.
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 (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 on November 17, 1824, by Tucumán on September 1, 1860, and by Entre Ríos on March 10, 1866); the determination of domicile 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 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.
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 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 María Cabral from Corrientes Province, was passed, which empowered the executive branch 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 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, 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 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".Decree dated June 23, 1865. Cabral Texo (1920). ps. 130. 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 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".Cabral Texo (1920), pp. 130ss
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