As from 1 August 2015, Argentina has in force a new Civil and Commercial Code enacted by Law Number 26,994 (Código Civil y Comercial de la Nación or CCCN) that repealed the former Civil Code and Commercial Code. However, the contract of insurance has not been regulated by the CCCN and is still governed by a supplementary law: the Insurance Law Number 17,418 (Ley de Seguros or LS)1. Despite the explained, certain modifications to contractual and obligational provisions introduced by the CCCN may impact on the contract of insurance.
As to contractual law, the CCCN has provided for the so-called adhesion contracts or standard-form contracts: contracts entered into by adhering to predisposed general clauses (CCCN, Articles Number 984 through 989)2. The insurance contract should be construed as one of these adhesion contracts, since for most part the insured party may not negotiate nor draft any of the content but to adhere to the general clauses unilaterally drafted by the insurance company. Thus, more stringent provisions will apply to the insurance agreement, as to the clear, complete and legible wording of the clauses, ambiguity of its content, abusive clauses, etc. In this line, clauses referring to documents or information not provided by the insurer, distorting obligations of the insured, extending the rights of the insurance company, or clauses not reasonably predictable, will be deemed unwritten (CCCN, Article Number 988).
Further, the dispositions protecting consumers under the CCCN (Articles Number 1,096 through 1,192) and specific consumer legislation (Law Number 24,240) may also apply to insurance contracts protecting the insured party as a consumer. Therefore, all consumer protective dispositions contained in the CCCN and Law Number 24,240 must be thoroughly reviewed when now drafting and construing insurance contracts.
Regarding civil liability in general and the extension of damages, the loss of chance is now expressly governed by the CCCN (Article Number 1,739). Besides, compensation of damages in case of injuries or physical or psychological disability will be calculated according to a mathematical formula: the judge must award the injured or handicapped human person enough capital so as to investing it and obtaining enough proceedings to cover the diminution of his / her capabilities to perform productive activities; the awarded capital should exhaust within the term the affected party might have reasonably continued to perform such activities (CCCN, Article Number 1,746). As this criterion clashes with the general principle of full indemnification for damaged people, given that human life and its necessities may not be only viewed upon the basis of sheer productive capabilities, this legal disposition will surely receive constitutional challenges. In this regard, Argentina´s Supreme Court of Justice, in re Aróstegui, Pablo Martín c/ Omega ART S.A y otra (04/08/2008) has upheld that to compensate human damages mathematical formulas do not apply, because they do not weigh all the losses an injured person suffers in the other aspects of his / her life besides the productive one (e.g. social relationships and interactions, everyday and extra work activities, etc.).
Finally, the new CCCN´s mandatory provisions will apply to ongoing contractual relationships and not just those originated after the CCCN (Article Number 7), which should be specifically addressed when conflicts arise out of contracts entered into before 1 August 2015 and with effects thereafter.
1 Pursuant to Section 5 of Law Number 26,994: "The laws that currently integrate, supplement or are incorporated into the Civil Code or the Commercial Code, except for the provision of Section 3 of this law, remain in effect as laws that supplement the Civil and Commercial Code of the Nation approved by Section 1 herein". Accordingly, certain laws that were incorporated to or supplemented the abrogated Commercial Code have kept their effectiveness as supplementing the new CCCN. These laws include, for example, the Bankruptcy Law Number 24,522, the General Companies Law Number 19,550 and the said Insurance Law Number 17,418, among others.
2 Defining standard-form contracts, the CCCN states that "The contract of adhesion is that whereby one contracting party adheres to general clauses unilaterally predisposed, either by the other party or by a third person, not taking part in their drafting" (Article Number 984).
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