Freedom of contract under the Argentine Civil and Commercial Code
Section 1197 of the Argentine Civil Code – in force until August 2015 –set forth the concept of freedom of contract (self-regulation), indicating that everything agreed in contracts constitute a rule for the parties which should be treated as the law itself.
Now, the Civil and Commercial Code (“CCC”) -currently in force-, more precisely Section 958 provides that the parties are free to enter and set forth the contents of the contract within the limits of the law, public order and morals.
Considering the importance of the free will as a general principle of law, the rule of self-regulation (contractual freedom) is clarified: the CCC establishes the right of the parties to agree on the content of the contract. In addition, the other aspect of the general principle above mentioned is introduced: the self-decision (freedom of contract), implying that the party may or may not want to enter into a contract.
It is important to mention that the CCC recognizes that these principles are not absolute. The previous Civil Code remarked that the contract freely agreed by the parties was irrevocable, in which case, it could not be revoked neither by law or judicial review. Now with the recognition of the two pillars of the contract, the CCC states precisely that they must be exercised within the limits and constraints set forth therein. Similarly, Section 959 confirms the enforceability of contracts and adds that its content “… may only be modified or terminated by the parties or in cases established by law.”
Mobile applications concerning taxi services in Argentina
With regard to the regulation of taxi services in the City of Buenos Aires, and according to Law No. 3622 of the Traffic and Transportation Code, taxis can only lift passengers on the street, at taxi stops and by telephone, mail or other means, but always through radio taxis. In this sense, certain requirements must be met, such as having radio frequencies to operate, a physical location for offices and a number of operators proportional to the number of associated vehicles.
Law No. 3622 does not cover taxi services through other means, such as Internet, SMS or e-mail. This is why, for example, the Autonomous City of Buenos Aires ordered Easy Taxi, an application that provides taxi services, to refrain from operating for five years for failing to abide by the law. Instead, Safer Taxi, a similar application, decided to associate with a radio taxi company to meet those requirements.
Mobile applications that provide users transportation networks represent the evolution in the means of transportation. This is the case of Uber, which connects passengers with registered drivers; thus connecting people who need reliable transportation to those who want to make money while driving their cars.
Taking into account the principle of free will and freedom of contract, passengers are free to enter into a contract with the transportation service they want. Although the Argentine legislation makes it clear that each contract has to comply with the limits imposed by law, in our opinion, it would be expected that the City of Buenos Aires adapt to the new trends and technologies, and support the use of the said mobile applications in order to achieve the expected efficiency and effectiveness. In short, these mobile applications only attempt to provide passengers with a better service.
