A lawyer appealed the decision of a judge who, when settling his fees in a process, applied the passive rate of interest, under the terms of art. 61 of law 21839.
For the lawyer, such a decision implied “abstracting from the reality of the country,” by not covering the value of the devaluation of the currency in the current inflationary context, which is why he required Chamber III of the Federal Civil and Commercial Chamber to the statement is modified and the active rate of the Banco de la Nación Argentina is applied.
The case known as “SCDA v. Banco de la Nación Argentina and another regarding breach of contract” reached the appellation, where it was recognized that the delay in the payment of fees was not an issue discussed, nor that it occurred during the validity of law 27423.
In this sense, they explained that the plenary doctrine became applicable by virtue of which “when the delay in the payment of professional fees had occurred during the validity of Law 27,423, the guidelines that arise from said law will be applied, regardless that the fees have been determined in accordance with the provisions of Law 21,839 (as amended).”
This way of deciding also transgressed the principle of equality by discriminating against lawyers with respect to the generality of creditors by prohibiting them from obtaining what is conferred on them and by unbalancing the credit relationship in favor of the defaulting debtor who is motivated to maintain the breach.
Furthermore, according to art. 54 paragraph 5 of Law 27423, the “same criterion as that used to establish the updating of the economic values of the case” should be followed in cases of late payment of fees, and given that the ruling in the case established interest on the capital of the sentence at the active rate, the rate applicable to the fees should be the same.
They added that maintaining the passive rate would alter the property right of the lawyer, “since it establishes an invariable price of the money owed for an indefinite period of time, without any consideration to the value of the currency, the cyclical fluctuations that the country is going through or, in general, sum, to the changing economic reality that is part of the objective legal truth”, which compromised the “integrity of the credit” and therefore “full reparation.”
This way of deciding also transgressed the principle of equality by discriminating against lawyers with respect to the generality of creditors by prohibiting them from obtaining what is conferred on them and by unbalancing the credit relationship in favor of the defaulting debtor who is motivated to maintain the breach.
For this reason, judges Guillermo Alberto Antelo and Eduardo Daniel Gottardi admitted the appeal and ordered the application of the active rate.
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2023-12-27 04:06:02
#Dont #unfair #lawyers
