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 un Código Civil pra Brasil) by Freitas, and the prestigious and influential 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 even proposed to merge the civil code with the commercial code, following the example of the Italian code.
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.. However, the Commercial Code had better luck. The task of compiling that code had been given to Dalmacio Vélez Sársfield and Eduardo Acevedo, 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.
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:
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.
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 of 1824, by Tucumán on September 1 of 1860 and by Entre Ríos on March 10 of 1866); the determination of domicile in the main estate (dictated by Buenos Aires on September 16 of 1859), about books of births, matrimonies and deaths, being the parish priests in charge (dictated by Buenos Aires on December 19 of 1821, by Jujuy on September 7th of 1836 and by Santa Fe on May 17th of 1862); about restrictions and limits to the domains (dictated by Buenos Aires on July 27th of 1865, by Jujuy on February 1855 and March 7th of 1857, and by Córdoba on August 27th of 1868); and of the renting of fields (dictated by Santa Fe on July 31st of 1837).
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 N° 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". 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"..
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.
The indirect Roman influence is reflected in the most part in the doctrines used by the author, especially as regards patrimonial structures. The main influence on the work of Vélez Sarsfield was the German Romanist Friedrich Karl von Savigny with his work "System of the present Roman law" (System des heutigen römischen Rechts), used especially referring to legal entities, obligations, property and possession, and the adoption of the domicile principle as a determining element of the law, applicable to the people's status and capacity.
The influence of this legislation regarding its method and technique was practically null, what can be understood due to the dispersion that characterized it. Nevertheless, on the material, and the sense and reach of the dispositions, Vélez did make use of the old Right, adopting it to the new needs.
The national legislation had little relevance on private law, though it did partially influence on the work of the Coder. Such is the case of the hereditary vocation of the article 3,572, whose antecedent is the law dictated by the legislature of the Buenos Aires Province dictated on May 22, 1857. Vélez had also in mind the uses and customs of the country, especially regarding the family organisation.
The direct influence can be shown in the 145 articles copied from the French code. But the main direct influence of the commentators is that of the treta of Charles Aubry and Frédéric Charles Rau (specially the third edition published in Paris between 1856 to 1858, of which the Coder took several passages that he used in around 700 articles.The work of Raymond Troplong provided the material for 50 articles related to the testament inheritance, and others for the real rights. From Jean Demolombe he took 52 articles for book IV and 9 ffor book III, from Chabot he used 18 articles for book IV, and from Zachariae 70 articles.
The ‘’Consolidation of the civil laws’’ sorts in 1,333 articles the material of the Portuguese legislation, that contained the same dispersion present in the Spanish legislation in use in the Americas. His "Draft" was commended to him by the Empire of Brazil in 1859, but remained unfinished after completion of article 4,908, without reaching the inheritance section. In spite of this, it was one of the most frequently consulted works by Vélez Sársfield; the first three books of the Argentine Civil Code contain more than 1,200 articles from the ‘’Draft’’.
After the French Code, the most influent code was the Chilean Civil Code , promulgated on 1855 and written by lawman Andrés Bello. That code was highly valuated by the Argentine Coder, and it is estimated that he based on it for the formulation of 170 articles of the Argentine code.
He also made use of the Code of Louisiana, in which he based for the creation of 52 articles, of the Albertine Code for the Sardonic States, of the legislative Russian consolidation, the Code of Parma, the Code of Two Sicilies, the General Prussian Code of 1874, the Austrian Code of 1811, the Code of Nueva York State and the Italian Code of 1865.
Vélez Sársfield made also use of the 1951 project for the Spanish Civil Code prepared by Florencio García Goyena. That project held 3,000 articles, and it’s calculated that it helped in the formulation of 300 articles of the Argentine Code.
Vélez Sársfield dedicated much effort to the selection of an adequate method, and after receiving objections to the use of the methods of Justinian's Institutiones and of the French civil code, he decided to use the one followed by Freitas in his Consolidaçao das Leis Civis, which finds its origins in the teachings of Friedrich Karl von Savigny.
According to Freitas's ideas, it is convenient to commence a Code Law by the general dispositions, then address the ones referred to the subject of every legal relation ("the theory of persons"). But, as men don't live isolated but in their family's bosom, it must be continued with the Family law. Then the individual enters the civil life and establishes links person-to-person: the "obligations", or person-to-the-things submitted to him: the "real property". Finally it must be legislated about the theory of estate, with the "successions" and the "theory of privileges". To end, the institution of prescriptions, that, as referring to the rights as a whole, it was considered appropriate to locate it in a section inside the common dispositions to the real and personal rights.
Thus, the Civil Code organisation is the following:
The presence of these notes stems from a request from the Ministry of Justice, that he annotate each article and its conformity to or divergence from laws currently in force in the country, as well as those of the major world powers.
The notes are very valuable from a doctrinal standpoint. In them the codifier states the problem, summarizes the arguments and chooses a solution, always in a succinct manner. As a result the Code became a veritable treatise on comparative law, which proved to be quite useful, as the bibliographic material available at the end of 19th century was not plentiful.
It is important to note that the footnotes contain numerous errors and even contradictions vis a vis the article text, as can be seen in the text of articles 2.311 and 2.312 and the footnote to the former. Some of these errors are attributable to the codifier, but others are likely due to circumstances beyond his control. There are instances where Vélez Sársfield reworked an entire title or modified a rule without altering the footnotes pertaining to the original edition. In this manner, for example, all the footnotes in Book IV were brought directly from the original drafts by Victorino de la Plaza without any of the pertinent modifications. That said, one should keep in mind that during the editing of Nueva York and La Pampa many modifications from the original text were accumulated.
This edition, known as the Buenos Aires edition, had many errors, and the numbering of the articles wasn't done with the work as a whole, but independently in every tome. This numbering method resulted very useful at the time of its writing, as the addition or suppression of new articles required minor touch-ups in the group of articles, but once printed was inefficient.
Because of this, President Sarmiento insinuated to the codifier the necessity of making a new version that included the typos corrections. Veléz Sársfield accepted this proposition, and commended this correction work to his cousin Carlos Carranza through a letter:
The printing was trusted by Sarmiento to the Argentie minister in Washington, Manuel García, while the rest of the task was given to the company Hallet Breen, who had quoted $2,000 less than other firms. This edition, renowned as the New York edition, maintained the numbering depending on each tome, and wasn't free of typos either.
The first law of Errata was the law No. 527, that sanctioned what the Executive could propose for the new edition of the Civil College New York law, which could introduce a correction of twenty-four(24) titles.
This was necessary because when the first copies of this edition arrived in the country at the end of 1870, President Domingo Faustino Sarmiento's opposition took advantage of the modifications in the legal code sanctioned by Congress to initiate a media campaign against the government. For this reason Victorino de la Plaza and Aurelio Prado were appointed to compare both versions and report on the existing differences. While they were doing so, on 1 January, 1871 President Sarmiento's decree declared the Buenos Aires edition to be official.
In August of that year, Dr. de la Plaza and Dr. Prado reported that they had found 1,882 differences between the two texts, but due to the intrascendencia of many of these alterations, they concluded that the new edition of the code was not contrary to that sanctioned by Congress.
However, public opinion was not amiable with this solution, as it declared official a text only nominally approved by the Congress and had a great amount of misprints besides. This last problem was what the senator for Tucumán Benjamín Paz prepared to rectify, by means of a law project presented in 1878 that noticed 29 new errors. As this project passed through the commissions of the Chambers of Deputies and Senators, the number grew up as far as 285. This 285 errors are the ones that the Law No. 1196 corrects, sanctioned August 29th of 1882, commonly known as the Law of Errata, though it was the second of its kind to be sanctioned.
But all the corrections were not limited to merely formal adjustments: some of them introduced changes in the doctrine of the Civil Code edited by Vélez Sársfield. This is the case of the alteration introduced in the article 325, in whom it was added as a requisite sine qua non the state of natural son to start an action of paternity after the father's death:
The Law 1,196 also established the making of a new edition that included the corrections stated in that law. Abiding that disposition, in 1883 the third edition of the Civil Code was made, known as The Pampa edition for the name of the workshop who did the printing. This edition includes an important modification, being that the articles are number as whole.
In 1900, President Julio A. Roca ordered a new edition that eliminated the articles revoked by the Civil Marriage Law and introduced the new dispositions without altering the numbering of the non-modified articles. At the end of the task, the project was sent to the national government, who in turn passed it to the Faculty of Law of the University of Buenos Aires to examine it. The Faculty designated a commission, who after the investigation determined that the project introduced reforms in the law doctrine. After asking for a competence extension, the Commission proposed this modifications in 1903, although the project was never dealt with by the Congress.
The rationalist notion that all law should be condensed and comprehensively written in a code was challenged by social, economic and political mutations which imposed a need for the text to be constantly updated. One of the issues that divide the doctrine on this subject is the question of whether it is more convenient to make partial reforms of the code or to completely substitute it with another one.
Until recent times, the Civil Code has only been partially reformed, the most notable reform effort being that associated with Law 17.711. Nevertheless, there have been several projects to replace the Code completely, including one that went so far as to attempt to merge it with the Commercial Code.
Law No. 17,711 was sanctioned on April 22 1968, and came into force on July 1 that same year. This law affects approximately 5% of the Civil Code articles (200 articles in whole), but its importance trascends numbers, as it changes some of the backbone criteria of the established regime.
Among the most important changes, this reform included the theory of abuse of rights, the lesion vice, the good faith principle as the rule for interpretation in contracts, the theory of unforeseenness, the limitation of the absolute character of the property, the generous repairing of moral damage in the contractual and extra-contractual civil responsibility, the possibility of reducing the compensation in the forced crimes, the solidarity of the co-authors of forced crimes, the automatic delay as a rule in obligations with deadlines, the implicit resolutory condition in contracts, the registry inscription as publicity for the transmission of property rights on real estate, the protection of third parties with good faith sub-acquirants of property or personal rights in case of nullity, the acquisition of age at 21, the emancipation by age abilitation, the extension of the capacity of the working minor, the personal separation by joint proposal and modification of the succession order.
Although not all the doctrine agreed then with the changes made by the law, which gave it many criticisms, time proved that the reform was an important advance in the Argentine civil legislation.
The resulting committee was formed by Roberto Repetto, Julián Pera, Raymundo Salvat, Juan Bibiloni, Héctor Lafaille, Enrique Martínez Paz, Juan Carlos Rébora, José Gervasoni and Rodolfo Rivarola. This committee suffered a few changes, as Salvat resigned and was replaced by César de Tezanos Pinto, while Pera, who ascended to the position of minister of the Supreme Court, was replaced at first by Mariano de Vedia y Mitre and then by Gastón Tobal.
Doctor Bibiloni was commissioned the writing of the draft, which would serve as an orientation for debates. Bibiloni finished in six years, but while he was working different books with the same purpose were being published, similar to Dalmacio Vélez Sársfield's bill. Because of this, the committee had started to have debates since 1926 and not 1932.
This draft has a great influence in German judicial science, not only directly in the German Civil Code, but also through its commentaries. The code also used the same doctoring tool as Vélez Sársfield, the inclusion of footnotes to establish resolutions.
As far as its methodology, the draft contained a General Section, in which it deals with people, the facts, the things, the practising of the rights and the prescrition; and four books in which it deals with it deals with the family, the obligations and their sources, the real rights and the succession, and finally it features a law of registries.
The whole of the articles of the project is relatively brief; it had 2,144 articles. Each article grouped in several paragraphs the solution to the issues related with the subject that was dealt with in the article, which made them dense but facilitated their study.
After the conclusion of editing in 1936, the draft was sent to the National Executive Power on October 10 of that year. The Executive Power sent the draft to Congress, but it was never ratified.
The draft contained 1,839 articles, a very small number in comparison with the present Civil Code and other previous projects. Such synthesis was achieved by omitting the repetition of general principles, and defining only the differences to those general principles in the description of the code for particular institutions.
The used method contains a Preliminary Title, which consists of three chapters with the general resolution, norm on private international law, and the computation of time periods. Divided in five books, Book I deals with the general principles, the persons, property, facts and juridical acts; Book II with the family, Book III deals with inheritance; Book IV with the obligations and Book V regulates the real and intellectual rights.
In 1986, the General Legislative Commission of the Chamber of Deputies created a committee for the "unification of the civil and commercial legislation", designing Héctor Alegría, Atilio Alterini, Jorge Alterini, Miguel Araya, Francisco de la Vega, Sergio Le Pera and Ana Piaggi as advisors, to whom would later join Horacio Fargosi.
On April 22, 1987, the project was raised, and on July 15 sanctioned by the Chamber of Deputies. The project moved on to the Senate, where a temporary commission was formed, which made several reforms, but didn't arrive to a conclusive judgement since its duration was not renovated after the originally intended six months.
At the end of 1991 the law was sanctioned with no modifications by the Senate, but later the Executive Power, considering it inadequate to the new political and economical situation, decided to veto it.