Abstract
Argentine contract law uses UNIDROIT Principles of International Commercial Contracts both as an inspiration in its legislation as for its interpretation and support on judicial decision. The recently into force Argentine Civil and Commercial Code mentions the Principles in the exposé des motifs regarding formation of contracts; agency, concession and franchise contracts and contract liability, and furthermore the inspiration on the Principles is not limited to the occasions in which it is expressly mentioned therein. Several provisions of the UNIDROIT Principles of International Commercial Contracts have a counterpart in Argentine contract law such as contractual negotiations—treated by the Principles as “negotiations in bad faith”—and surprising terms in standard terms contracts, which are evidently inspired in the UNIDROIT Principles. Moreover judicial decisions have referred to the Principles as a confirmation that the proposed solution enjoys consensus in international commercial law.
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Notes
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- 3.
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Rivera (2015), p. 895.
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(Emphasis added).
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(Emphasis added).
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(Emphasis added).
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Rivera (1999), p. 863.
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It refers to the Civil Code in force since 1871, which today is replaced by the Civil and Commercial Code of 2015. In any case, the current law preserves the rule of the old Article 1198, stipulating that “Contracts must be celebrated, interpreted and executed in good faith. They oblige not only what is formally expressed, but all the consequences that may be considered included in them, with the scope in which a careful and forward-looking contractor would reasonably have been obliged.” (Article 961).
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Article 990: Freedom of negotiation. The parties are free to promote negotiations aimed at forming the contract, and to abandon them at any time.
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Article 991.—Duty of good faith. During preliminary negotiations, and even if no offer has been made, the parties must act in good faith so as not to frustrate them unjustifiably. The breach of this duty generates the responsibility to compensate the damage suffered by the affected party for having entrusted, without their fault, the conclusion of the contract.
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Article 988.—Abusive clauses. In the contracts provided in this section, the clauses detailed herein shall be considered not written:... c) those that due to their content, writing or presentation, are not reasonably foreseeable.
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Article 1061.—Common intention. The contract must be interpreted according to the common intention of the parties and the principle of good faith.
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Rivera (2013), p. 1134.
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Article 1064.—Contextual interpretation. The clauses of the contract are to be interpreted by each other, and by attributing them the appropriate meaning of the act as a whole.
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Article 1066.—Principle of conservation. If there is doubt about the effectiveness of the contract, or any of its clauses, it must be interpreted in the sense of giving them effect. If this results from several possible interpretations, it must be understood with the scope most appropriate to the object of the contract.
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Article 765.—Concept. When the debtor owes a certain amount of currency, determined or determinable, at the moment of constitution of the obligation it is an obligation to give money. If in the act of constitution of the obligation, it was stipulated to give currency that is not legal tender in the Republic, the obligation must be considered as to give quantities of things and the debtor can be released giving the equivalent in legal tender.
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Article 768.—Default interest. From its default the debtor owes the corresponding interest. The rate is determined:
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a)
as agreed by the parties;
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b)
according to the special laws;
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c)
by default, applying fees that are set according to the regulations of the Central Bank.
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a)
References
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Rivera, J.C. (2021). The Use of the UNIDROIT Principles of International Commercial Contracts in Order to Interpret or Supplement Argentine Contract Law. In: Garro, A., Moreno Rodríguez, J.A. (eds) Use of the UNIDROIT Principles to Interpret and Supplement Domestic Contract Law. Ius Comparatum - Global Studies in Comparative Law, vol 51. Springer, Cham. https://doi.org/10.1007/978-3-030-54322-8_2
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