THE LEGISLATIVE AUTONOMY OF THE CONTRACT FOR CARRIAGE BY AIR AND THE ORDER OF PRECEDENCE SET UP BY THE CIVIL AND COMMERCIAL CODE OF 2014 (with particular reference to the contract for passengers transport by air concluded by electronic means)

Abstract

The main purpose of this article is to examine the extend to which the numerous normative precedence enshrined in the new Civil and Commercial Code can affect the legislative autonomy of Air Law, and more specifically, the regulation of the contract for carriage by air of passengers. The analog method and the hermeneutic tradition of legal interpretation are at the core of our work as well as the following general principles: a) In toto jure genere per speciem derogatur (In the whole domain of the law, the species derogates the genre); Lex specialis derogat legi generali (A law governing a specific subject matter overrides a law which only governs general matters), Ubi lex non distinguit, nec noc distinguere debemus (Where the law makes not distinguish, we have not to distinguish) y ubi lex voluit dixit, ubi non voluit tacuit (When the law wanted to regulate the matter in further detail, it did regulate the matter; when it did not want to regulate the matter in further detail, it remained silent). Despite the fact that from such a perspective the Civil and Commercial Code plays a subsidiary role, it remains unclear how the Code articulates its precepts of public order with those enshrined by the legal regime that regulates the air transport contract. Therefore, the specific purpose of this chapter is both to individualize the articles and to analyze the extent to which the rules of the new Code have a direct impact on the contract of air transport of passengers concluded by electronic means. The focus of our analysis is on the use of electronic procurement systems because it is the modality that prevails worldwide when people enter into a contract of air transport. This paper deals with the following issues: (a) to determine which of the numerous normative precedence established by the CCCN are applicable to the air transport contract; (b) to discern and consequently to find a solution between the tensions generated by the new CCCN‘s rules of public order and those previously enshrined by both the Aeronautical Code and the international air transport agreements in which Argentina is a State party; (c) to elucidate the manner in which the e-commerce rules enshrined by the new CCCN can be articulated with the customary practices carried out by passengers when concluding by electronic means a contract of transportation by air. Some concrete solutions resolving the dilemmas raised by contracts inter absentes are displayed at the end of this article.