Foreign currency contracts in the new code CyCN by Diego Migliorisi

Por Diego Migliorisi

New Civil and Commercial Procedure. Pesos or dollars?

With the imminent entry into force of that code to August 2015. This modern body of law arise in principle different interpretations in reference to the obligation of contract cancellation in foreign currency, contrariándose somewhat Articles 765 and 766. In the first (765) claramente menciona la posibilidad de cancelar una obligación en moneda extranjera en moneda de curso legal sin especificar el lugar de cotización (Argentina, Montevideo New York). In the following sub-article (to consider foreign currency as a thing) emplaza al deudor a entregar la misma cantidad de especie designada, Bone foreign currency.

The concept of article 766 many items of that code is repeated elsewhere as in the contract of bank deposit, bank loan, bank rate and the loan agreements. In all these cautions code compliance with the obligation of the debtor or obligor as a duty "return in the currency of the same species”. So if hired at $ -at this be considered a kind- the requirement should be met in the same species.

Furthermore Article 1527 to do the mutual relationship is exhaustive in fulfilling the obligation in the same currency agreed.

ARTICLE 765.- Concept. The obligation is to give money if the debtor has a certain amount of currency, given the determinable, at the time of constitution of the obligation. If the instrument which has become an obligation, stipulated give currency other than legal tender in the Republic, the obligation should be considered as giving lots of stuff and giving debtor may discharge the equivalent in legal tender.

ARTICLE 766.- Obligation of the debtor: The debtor must pay the amount corresponding species designated.

Bank deposit

ARTICLE 1390.- Deposit money. There deposit money when the depositor transfers ownership to the depositary bank, who has the obligation to make restitution in the currency of the same species, a simple request of the depositor, or the expiration of the term or notice referred conventionally.

Loan and bank discount

ARTICLE 1408. Bank loan. The bank loan is a contract by which the bank agrees to deliver a sum of money forcing the borrower to repayment and interest payment in the currency of the same species, accordance with the agreement.


ARTICLE 1525.- Concept. There loan agreement when the lender agrees to deliver to the borrower in property, a certain amount of fungibles, and this is obliged to return the same amount of things of the same quality and kind.

ARTICLE 1527.- Onerosidad. Mutual is onerous, unless otherwise agreed. If money is mutual, the borrower must compensatory interest, to be paid in the same currency borrowed. If mutual is fungible other things, interests are settled in cash, taking into consideration the price of the borrowed amount in place things that payment is due Accessories, day period starts, unless otherwise agreed.

While many like many colleagues attempt to elucidate a code without interpretative notes or explanatory(unlike the previous condigo Dr. Velez Sarsfield) , based on the profound autonomy that prints the new body of laws , and of course jurisprudential reasoning and applicability centuries in reference to the obligations agreed in foreign currency, should risk that if the parties agree on a coin of certain species taking knowledge of current market situations rightly warning exchange or possession of the number of species and (foreign currency) reserved to settle the obligation , el incumplimiento del pago en la especie pactada traería aparejada el incumplimiento del contrato. Más allá de ello, de no existir un texto legislativo de aclaratoria antes de la entrada en vigencia, unfortunately it must wait for justice jurisprudence feel when they arise corresponding disputes.

In fact regarding compliance and agreement between the parties can be the following situations:

  • Article 765 (at odds with the rest of the items) establishes the possibility of canceling in legal tender, but does not set on Exchange. Debemos tener en cuenta que esa cotización –y desde ya sin tener en consideración el tipo de cambio ilegal- , in other places such as Montevideo quoted market than only Argentina. If the parties agree to pay - if not get foreign currency- in legal tender under the market price of Montevideo, the contract should be met under resolution mechanism that the parties agreed to.
  • In case of agreeing exhaustively set out in Article 766 - That is the obligation of payment in the same species agreed- under penalty of default and termination of contract. Should also be considered valid way of resolving this conflict scenarios agreed between the parties, because if the obligor does not credit the kind pacta be understood that breached the obligation.