The first thing you learn in the Faculty of Law is the Legal Pyramid, about the order of priority of the different legal norms in our state of Law. We know that the National Constitution is above everything, then the Laws, which are only repealed by Laws, the presidential Decrees are one step below these, and the legislative power must be very strict in the delegation of legislative powers to the Executive.
We are witnessing a Decree of Necessity and Urgency, at the beginning of the government, but at the end of the legislative period, which is equivalent to a weak congress, surprised, without reaction, and that due to the doctrine of fait accompli, when it decides to review the Decree, back in March or April, not only could it be abstract, but it could also generate various legal limbos of the consequences and new acquired rights, even in tension with the constitutional and very personal ones.
By said DNU, for example, and beyond its foundations, a large number of labor laws that have been in force for many decades are repealed, leaving the dismissed worker absolutely unprotected of rights, regardless of their status as registered or unregistered, without fines of any kind. type to apply at the time of dismissal due to defects in the employment relationship. It seems, however, that this new way of legislating, of imposing and repealing laws, will be carried out without further ado, as in other times the substantive codes, prepo, or by decrees formerly “Decree Law”, today DNU.
The core of the reform is the modification of Art. 958 of the Civil and Commercial Code of the Nation, which in its version Lorenzetti He said: “FREEDOM OF CONTRACT: The parties are free to enter into a contract and determine its content, within the limits imposed by law, public order, morality and good customs.” While according to Decree 70/2023, its version Milei be: “Contracts Freedom of contract. The parties are free to enter into a contract and determine its content, within the limits imposed by law or public policy.. Legal norms are always of supplementary application to the will of the parties expressed in the contract, although the law does not expressly determine it for a specific contractual type, unless the norm is expressly imperative, and always with a restrictive interpretation.
The differences guide the entire DECREE and the new legal order. Not only are regulatory concepts as broad as they are diffuse, such as morality and good customs, eliminated; but rises above all the free and reciprocal will of the parties, and the parties can agree on their relationships and mutual obligations as they wish, both in the form of compliance, provision, currency of payment, penalties, deadlines, etc. and the legislation, which previously marked the clear limits of legality of the contract, content and form, will now be supplementary, only when some provision is not clear or had not been taken into account, or the rule is imperative, mainly safeguarding the contract, as Law for the parties.
But who benefits and who is harmed? In principle, all those whose rights and obligations, at the time of contracting, were protected by laws, regulated both the form of materialization of the same and the sanctions for their violations are harmed. Mainly we find the workers, whose job stability will be more at risk, while seeking to achieve a system of greater labor supply, hand in hand with the drastic flexibility adopted.
The beneficiaries are and will be businessmen, merchants, entrepreneurs, local and foreign investors (along with the devaluation and a future exit from the exchange rate) of the private sector, who must now carry out a new and different cost structure, planning their company or trade, enhancing it, reducing the structure that they do not need, modifying or specializing the existing one with lower labor costs, employer and even contractual charges. The less labor, commercial and tax regulation by the State, the more flexible production costs, the fluidity and supply of products, the balance of purchase and sale prices, technological renewal, expansion and diversification of the company, the specialization, training and promotion of the workforce, etc.
In this new stage, of repealed legislations, dictated and to be dictated in the coming days, of a “market society”, comprehensive Legal Advice becomes absolutely necessary, to maximize the commercial benefits of the new legislation, the necessary business decisions to be adopted under the new regulations, and in pursuit of the aforementioned, which because there are so many, so varied, unforeseen, and of rapid validity and implementation, they must be used avoiding all risk of errors or misapplication of the same.
TG & Associates Legal Firm.
Telephone 115656-4188.
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by CEDOC
