The current Civil Code of El Salvador dates back to 1859, that is, it has been in force for 163 years. Its longevity probably comes from the veneration it enjoys within the legal community, especially from those legal professionals dedicated to the subject and who honor its ancestors: the French Civil Code of 1804 and the Chilean Civil Code of 1855. Of course, it has undergone several reforms over time, some of them successful, others a bit controversial, but certainly not enough to meet the new challenges of the 21st century society.

The deputies of the Legislation and Constitutional Points Committee of the Legislative Assembly have agreed in recent months to create a subcommittee to initiate the study of a new Civil Code, with the purpose of updating the current one and making it compatible with the Code of Civil and Commercial Procedure. The relevance of the topic arises because the Civil Code is considered the backbone of Private Law, since it is in charge of regulating fundamental aspects of the relations between citizens, such as: the way of acquiring property, obligations and contracts, as well as succession by cause of death; it even serves as a supplementary rule for other areas of law. Therefore, it is valid to ask: is the creation of a new Civil Code necessary or is a modern adjustment to the already established norms enough? If the first question is affirmative, what should this new code regulate?

In the area of obligations in general and contracts in particular, the principle of the autonomy of the will is currently prevailing. The unrestricted and unlimited freedom of contract has been somewhat distorted, since the equality of the contracting parties on the legal plane, which is hypothetically assumed, often does not coincide with the contractual reality. Invariably one of the parties is in a position to impose its conditions on the other, thus generating infinite inequities. With new reforms or norms, this could be controlled by a brand new and perhaps unwelcome intervention of the State. Moderating abuses in contracting has been and continues to be a constant concern in today's societies, which even extends to commercial legislation.

In relation to property, its ownership, possession, use and enjoyment, a regulation more oriented to international standards could be sought; as well as the incorporation of new forms of exploitation of property, overcoming conventional concepts such as the "absolute" ownership of property and outdated ideas of forms of acquisition, such as occupation and accession, which have ceased to be functional in society for many years.

Finally, nowadays the damages caused by breach of obligations are reduced to the application of doctrinal theories and principles such as the principle of reparation, which aims to restore things to their original state, but leaves out the damages resulting from the breach. Therefore, a more progressive and rigorous regulation would be expected regarding the law of damages arising from the breach of contractual obligations contracted with another person.

It has not yet been specified which articles will be subject to reform, given that the idea of creating a whole new set of civil rules to fully repeal the current one is also contemplated. It is evident that there are numerous matters that need to be updated, but these must be adjusted with caution, because if this is not done well and with proper planning and advice, it could generate a risk to legal certainty.

For more information about how this may affect your company, please contact our specialized team at bvaldez@bvaldezlaw.com  or  benjamin@bvaldezlaw.com