There is a kind of rivalry between economists and lawyers that allow economists that lawyers always interpret reality with a rigid and little practical position. And to the lawyers, on the other hand, it must be said that economists have a very malleable way to interpret the law.
Well now an economist brought us to the discussion table to Decree 1124/2024 (and its regulations for CNV resolution 1046/2025), that bring a novel legal interpretation of monetary interest that in their part disrupts all the theory and practice of credit titles.
It seems, from now on we must make slightly more complex financial calculations than multiplying a rate for the amount of days elapsed to be able to claim a money debt implemented in a promissory note.
It turns out that the Executive Bran Article 5 of Decree 5965/63. And then he was going to regulate him having elapsed only 61 years without no one has occurred to that need.
This is how the Executive ordered in Decree 1124/2024 that the interests stipulated in the letters of exchange and promissory notes can be calculated: 1) depending on the price of a specific good or “commodity”, such as grains, precious metals or hydrocarbons. Of course, the reference must be based on official, public and accessible, national or international markets, clearly specified in the contract, or; 2) in relation to national or international financial indicators, or widely recognized financial markets in the economic-financial field. The formula must be “agreed” and clearly reflected in the instrument, guaranteeing that the parties can verify the reference indicator in an accessible and timely manner. For example: the index “Novillitos up to 390 kg.”
The turn regulator ordered that the interest rate, the financial indicator or reference and the applicable calculation formula must be detailed in the body of the instrument, so that the methodology to determine the interest is easily accessible, verifiable and adjusted to criteria of contractual transparency. Of course, he ignored that the bill of exchange and the promissory note are not contracts. A detail.
The Executive says in Decree 1124 that the Civil and Commercial Code of the Nation, in its article 768, establishes three criteria for the determination of the moratorium interest rate in the obligations to give sums of money: first of all, which they agree the parties; secondly, what special laws provide; and, in subsidy, the rates set according to the regulations of the Central Bank of the Argentine Republic. And the same indicates that the Supreme Court said.
It was a point, if valid to base the desired regulations, but it turns out that in these appointments it is noted that both the Civil and Commercial Code and the Supreme Court assume that the moratorium interest rate in the obligations of giving sums of money will be compliant will be compliant : 1) what the parties agree; 2) what special laws provide; and, in subsidy, 3) the rates set according to the regulations of the Central Bank of the Argentine Republic. They say nothing about setting the rate according to the price of a specific good or in relation to financial indicators.
And what would be the interest rate? The first answer I found is that “it’s about percentage that you have to pay for the loans requested to the bank or the percentage that will be charged for the deposited savings ”. Definition that is not mine, but publishes it on its website the Central Bank of the Argentine Republic. The interest rate is the result of a mathematical calculation that normally corresponds to a Credit percentage which is paid additionally to the amount of money (or capital) that is being requested through a credit operation.
So, is it possible to establish as interest of money (rent) to the calculations that fit a certain price price (depending on the price of a specific good or “commodity”, such as grains, precious metals or hydrocarbons), or indicators National or international financial, even when they are widely recognized in the economic-financial sphere? Everything points to the conclusion that it is not possible, except for the interest of money to be defined as “the nominal variation of the value of a product associated with the nominal value of money at a certain date.” But we would clearly be abandoning all the economic theory of interest in all its aspects, which have watered history with millions of liters of ink. Bad there for economists.
Then, and abstracting the concept above, we have another complication. Which does not come from a law in a positive sense of the term, should be set aside. And I refer to article 7 of Law 23928 of Austral Convertibility. Which, although despite the Executive Power, is still in force. This rule provides that: “The debtor of an obligation to give a certain sum of pesos fulfills his obligation giving the day of his expiration the amount nominally expressed. In no case will monetary update, indexation for prices, cost variation or repowering of debts be admitted, any cause, whether or not there is a default of the debtor, with the caveats provided for in this law. The legal and regulatory provisions are repealed and the contractual or conventional provisions will be inapplicable that contravene what is willing here. ”
Of course, Decree 1124 does not call the interest calculated by association to financial indicators (in relation to national or international financial indicators, or financial market rates widely recognized in the economic-financial sphere) as an adjustment associated with a monetary update index . This perhaps because it assumes that it is about calculating the interest of the debt nominated in pesos and not the update of the debt nominated in pesos. Question of legal interpretation to be done to lawyers and will surely be criticized by economists.
*Pablo A. Pirovano is a partner of Pasbba lawyers
By Pablo A. Pirovano
