Freedom Of Contract In Argentina

Author:Canosa Abogados
Profession:Canosa Abogados

Freedom of contract under the Argentine Civil and Commercial Code

Section 1197 of the Argentine Civil Code - in force until August 2015 -set forth the concept of freedom of contract (self-regulation), indicating that everything agreed in contracts constitute a rule for the parties which should be treated as the law itself.

Now, the Civil and Commercial Code ("CCC") -currently in force-, more precisely Section 958 provides that the parties are free to enter and set forth the contents of the contract within the limits of the law, public order and morals.

Considering the importance of the free will as a general principle of law, the rule of self-regulation (contractual freedom) is clarified: the CCC establishes the right of the parties to agree on the content of the contract. In addition, the other aspect of the general principle above mentioned is introduced: the self-decision (freedom of contract), implying that the party may or may not want to enter into a contract.

It is important to mention that the CCC recognizes that these principles are not absolute. The previous Civil Code remarked that the contract freely agreed by the parties was irrevocable, in which case, it could not be revoked neither by law or judicial review. Now with the recognition of the two pillars of the contract, the CCC states precisely that they must be exercised within the limits and constraints set forth therein. Similarly, Section 959 confirms the enforceability of contracts and adds that its content "... may only be modified or terminated by the parties or in cases established by law."

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