The homestead and the family business The homestead against the family business.
By Ignacio Ezequiel Alterini
Contents: 1. Introductory notions. 2. The homestead as guardian of the family business. 3. Possibility that a corporation is a constituent of the homestead. 4. The notion of self-exploitation. 5. Necessary majority in the governing body. 6. The partners may affect other properties of their homestead property. 7. Luck of the effect before the entry of non-family members. 8. The scope of protection. 9. Real subrogation.
Abstract: "If the law supports the involvement of a homestead property to his farm in order to meet the livelihood needs of a family, can not be invoked to deny his involvement that the holder is a legal person, knowing that its members are united by the bonds required by art. 36, as this would mean an abuse of personality and an act contrary to the purposes taken in 14,394 law looks. "
1. Introductory notions
a) Importance of the family business
The weight of the company in the community is undeniable, it is responsible for the production of goods and services needed for its members, thus enabling the creation of jobs which in turn allow the consumption of goods and services. Taker and giver is also credit, which contributes to the proper functioning of the economy, and a source of tax revenue by the state.
business activity is systemic, as the fate of each operation can not be considered in isolation in response to the unmistakable resonance it has in the other.
We have established that in the company, besides the clear interest of the employer, is committed to the public interest. (1)
For this reason, we coined the principle of conservation of the company, (2) derivation of the general principle of conservation of legal acts.
is significant to note that the total number of companies existing in our country and abroad, a large percentage are family. (3)
These companies deserve special protection because, in addition to the special interests and general statements, the art. 14 bis of the Basic Law, in line with international treaties with constitutional standing, (4) requires "full protection of the family."
b) Characterization
The doctrine has been tried many definitions of the company, for our part, and from the concepts of entrepreneur (5) and finance (6) contained in the Italian Code of 1942, conceptualized as economic activity through which, through the organization of factors production, the entrepreneur - individual or collective-produce or exchange goods or services for the market. (7)
joint model analysis is further qualified as "family." This imposes certain caveats.
colleagues to be set up this type of organization is necessary that two elements come together interrelated goals: family and business. It also presents a subjective one: the family intends to keep its stake in the company and that it was erected in supporting it. (8)
Therefore, according to Favier Dubois (h), we say that: "... there are 'family business' when members of a family run, control and own a company, which is their livelihood, and they intend to keep this situation in time and with a strong identification with the fate of the family and the company " (9).
c) Features
previous characterization of deriving the archetypal notes that distinguish these companies: belonging and permanence.
Because of the intimate relationship between company and family owned, it can be stated without hesitation some, the existence of a relationship of ownership (10) between them, such that they tend to confuse the roles of the members in one another.
Corollary that "ownership" is the strong vocation of "permanence" in the time they enjoy, allowing them to circumvent the economic contingencies, financial or social relations which can pass through.
has revealed that these organizations not only care about the economic returns, as there is in them a reason "... intrinsic characteristic of its members and founders, unclaimed by an outside interest." (11)
2. The homestead as guardian of the family business
a) The teleology of the institute. Law 14,394, which regulates various institutes, the homestead provision in their articles. 34 to 50.
In a first approach to the problem, is guiding the judicial doctrine which holds that: "The institution of family property is straightened to protect the family and has two objectives, namely economic, aimed at preserving a part of the assets within the family, and social, as tends the maintenance of the family under one roof. " (12)
This idea would seem persuasive and was accepted by some, (13) "... a little to deepen appears as a biased view that marginalize aspects of the potential wealth of the figure. While the legislature placed the emphasis in the protection of the family, who conceived the system has wider view, while paradoxically the homestead may produce significant effects, having no family. An indisputable example of an operating homestead without family, is the case of the last surviving beneficiary of the homestead, which also became its sole owner "(14).
Often considered the homestead as an exaltation the receipt of the "family housing", but should not lose sight of the real underlying purpose is the satisfaction of needs "housing and livelihood" of the family "(art. 34).
While you can show the support and housing as alternative purposes of the Act, it is more appropriate to conclude that the "support" the family what the law intends protect, and that among the manifestations of this "support" is the protection of the home.
According to the Dictionary of the English Royal Academy the word "support" in the first sense means: "Maintenance, food", the second: "That which serves to give force and permanence" and in the third, " Hold or support. "
remember that within the concept of food art. 372 of the Civil Code is understood the "room."
For its part, "dwelling" under the second meaning of the English Academy involves: "Gender of life or mode of living."
The harmonization of the terms mentioned convinced that the good family is designed to meet the livelihood of the family, and the protection of housing is only one of the possibilities afforded by the law to achieve it. Therefore, it is argued that the true purpose of the institute is the protection of "family assets for food" (15) (Arg arts. 34, 39 and 41).
b) The protection of the family business. If the purpose of homestead was straightened exclusively to protecting the family home, not successfully explain the protection they enjoy the fruits that creates the thing. (16)
also clear the exorbitant arises from the mere protection of the home of art. 41 which stipulates: "The owner or your family will be forced to live the good or exploit for its own account or the property industry in the existing exceptions to the enforcement authority may agree to only temporarily and for duly justified. "
The first point that deserves transcribed standard is that the owner or his family are forced to inhabit the property provided it is for housing, whereas if the property is exploited "self" (17) the owner or his family to generate income to meet livelihood needs, the obligation to live in it vanishes (Arg: the law in art. 41 uses the disjunctive "or"). Here appears evident that the idea of \u200b\u200b"support" is the genre and "housing" one of their species.
As the object of exploitation, the provision provides an alternative that is a building (18) or the existing industry. "
regard Bossert says that "... means that land can be exploited if it is a land for cultivation or livestock, as it is a building where you have installed a business owner or their beneficiaries of the scheme, for to produce the profits that serve to support the family. While the rule refers to 'the industry', can be a installed in the building trade, as no doubt the term has been used generically, referring to every enterprise intended to make a profit .... (19)
believe that the law with the word "industry" has sought to embrace the commercial farm defined as the set of assets that the entrepreneur organized for the operation and on which we will return later.
On the other hand, there is less stress that this can be any kind of exploitation, because what the law makes no distinction should not make the interpreter.
thus appears as muted 14,394 protection the law gives the family business, as its owner may affect the building that exploded, or, in performing its activities to produce profits serve him support his family, provided certain requirements are fulfilled the law.
The employer must be the owner of the property that affects either family (art. 34) and exploitation must be "self" of the entrepreneur or family (art. 41), for its own benefit (art. 36).
c) unconstitutionality of art. Regulatory Decree 154 of Decree 2080/80 2080/80
, regulating Law Registry of Deeds, rule in your art. 154 that: "It will support the constitution as a family asset and property units or ancillary use located in the same building, regardless of their assessed value, provided which are being designed to house the component or your family, or also be developed on the same staff and lucrative activity for any of the beneficiaries of that regime. "
be seen clearly a blatant disagreement with the art. 41 of the Act 14,394, as Art. 154 of decree 2080/80 does not support the homestead affect a building solely for exploitation, but adds the requirement that "were intended to shelter" and that it be developed on an "activity personal profit by any of the beneficiaries of that regime. "(20)
Thus we hold the rule unconstitutional because, by regulatory excess, in contradiction with 14,394 by the law, violating the letter and purpose, as stated, goes beyond simply protecting the family home.
3. Possibility that a corporation is a constituent of homestead
As stated in the previous section, it is indubitable that the law allows the employer to 14,394 individual homestead affect the property being exploited or where it operates, provided meets the requirements of the law.
What we now look at is the possibility that an employer group, as is the commercial company may be subject constituent of the homestead.
a) State of the question. Although the 14,394 does not expressly prohibit this alternative, the general doctrine that denies the possibility of a legal person can affect a building he owned a homestead, and who has no family.
is argued that "given the nature of the institute of family property, which requires a 'family status', and the obligation to live or operate in person, by component and / or your family, it is not compatible with the nature of legal person. " (21)
Guastavino, who at first sight seem to progress on this issue, states: "At the case of a family company that wants to establish a homestead, would be whether its members are found in the blood relationship Article 36 and if the right of ownership belongs to the members or the social body. Exist between the blood relationship partners required by law and rule of property belonging to members, should be allowed the registration of family property, lacking any of these conditions, the impact would be impossible in the current Argentine legal system. Excluding the impact from direct application of a body of law ideal, even among its members there are the ties of kinship. Only if the social entity donate the property, totally detached from it in favor of people linked by kinship to Article 36, would admit the validity of an effect. "(22) have been answered
the thoughts expressed by Guastavino, as follows: "The alternative offered on the membership of 'domain of the property to the partners' adds nothing, because they are the owners and not the body. Also sum the assumption that' the social entity donate the property ', it points to the indisputable legitimacy to donate, as well as the undeniable status of holders entitled to be the homestead of the grantees new owners ("for people linked by kinship'). It in the latter case adveno owners such as a gift would be the human person and not a social entity. " (23)
Insists Guastavino that: "The ideal legal person can not have family ties and therefore lacks the core budget of the institution need not familiar cover." (24)
While it is true that a legal person can not have "family ties", disagree with that "family protection needs." A family company, where profits are the livelihoods of their members, who maintain family ties required by art. 36, it is necessary to protect, for making it protects the family, it is imperative to note that in this type of society coexists with the familiar social interest. (25)
From another viewpoint has been expressed that "... in some cases could be accepted exceptions to this requirement, for example, if it were a family company, as a partnership composed solely of two or more siblings, or by a parent and child. It will be the enforcement authority who will assess whether, in the particular scenario, the allocation is feasible and can be applied by analogy the rules that govern the provision by the condominium owners (art. 43 in fine). "(26)
is interesting transcribed position, because we must not forget that there are important comparative law schools of thought about the nature of the condominium is a legal person.
Inclusive is located in the ever-weighted national doctrine Lafaille thought, very much alive at the time of the enactment of Law 14,394, based on the condominium matter an embryo as a person. (27)
This author noted that "the largest contributor to confuse the company and the condo is that often one and the other overlap in fact. For example, several people who have a common field, the operation carried out jointly the same. Here there are two different situations: the community about the society thing and what makes agriculture or livestock. " (28)
But beyond the discussion of the legal nature of the condominium, we do not doubt that is typical of a real right, right is that the distinction - which we are now interested in is that it is static, ie, limited the enjoyment of good, no organization for production, whereas commercial society is dynamic, formed and organized for the exploitation of assets transferred and profits. (29)
Such differentiation is consistent with art. 41 of 14,394 law which states that according to the destination of the thing, the owner or his family are forced to inhabit or exploit it.
Therefore, and although it can be applied by analogy to Art. 43 of the Act referred to 14,394 homeowners, especially in terms of the majority needed in the meeting of partners it seems that there is another reason for greater weight that allows a legal person of certain characteristics to be constitutional.
b) Our opinion. We do not intend to argue that the legal person can get family ties, it is obvious that you can not have, but to offer such arguments superseders apparent bulwark.
The possibility that a legal person may be subject constituent of homestead must be analyzed, in our opinion, from the point of view of the teleology of the institute: "protection of family assets for food." (30)
Imagine the following situation. Two people united in marriage affect a homestead owned property where a commercial activity carried supports them, and designated as beneficiary to your child. Then they decide to channel their business through a corporation that constitute and give the property to the entity in question "Shall the act? "It is the reversal?
traditional doctrine would say that the contribution of building a society mind a disposition and therefore prohibited, and also entail the impossibility of fulfilling the obligation to exploit it. (31)
We believe that this hypothesis should be examined taking into account the reflections of Sessarego Fernández: "Nothing that appears in the law may be ... alien to human life ... we can not disregard human life when we treat any legal institution, so bad we would create a purely formal institutions, without its counterpart in the existential reality, that is, making a kind of ghost institutions purely spectral " (32).
scene We bring the whole failure of the National Peace November 29, 1968, in the case "Anchorena Fernández, Juan A. and other c. Semadeni, Lorenzo and others "who, although not directly relevant to the item, will help us to envision a possible solution to the questions we raised.
the foregoing facts were that at a time when the transfer of the locations was banned, several people individually leased property, to which pursue a business activity, associated resolved by setting up a corporation to continue the same activity in the building. The landlord, to take notice of that fact, demanded the eviction because he had legally changed the subject of law that was developing activities in the property. The legal doctrine adopted by the plenary was: "The mere fact the co-tenants form a limited liability company, do not set ground for eviction." (33)
were admitted through the different votes of the judges who constituted the majority, rejecting the personality of the company for the benefit of members, considering that the third claim was improper, because the same people continued their activities on the premises. (34)
As we know the obstacle of legal personality distinct from commercial companies, there are exceptions (Arg arts. 2 ° and 54 of Law 19,550 and art. 1071 of the Code. Civil) (to 1984) (Adla, XLIV-B, 1319). In that ruling
whole personality is unknown to the benefit of members as a literal, detached from the spirit of the law, would have constituted an abuse of legal personality. This mode is unenforceable is qualified by the doctrine as "passive." (35) mirage
With equal Halperin noted that "The raid of personality should not always be applied to punish - in the broadest sense, to another entity or natural person may also be done on their behalf, where the maintenance of the distinction could lead to devote an unjust solution or repugnant to good faith. " (36)
The application of this doctrine leads us to conclude that in the given situation, the contribution of property to be valid and society that does not correspond disaffect the homestead, because the constituents are the same people who ended up as partners, be responsible for meeting the obligation to operate on their own to rule the art. 41 of Law 14.394 (Adla, XIV-A, 237), otherwise, be devoted, says Halperin, "an unjust solution and repugnant to good faith."
course, if we accept that, through an indirect mechanism, the legal person being the owner reaches the homestead, we must also recognize that can be directly constituent, although under certain conditions.
If the law allows the effect on a homestead property to his farm in order to meet the livelihood needs of a family, can not be invoked to deny his involvement that the holder is a legal person, knowing that its members are united by the bonds required by art. 36, as this would mean an abuse of personality and an act contrary to the purposes taken in looking through the law 14,394.
The possibility of considering the underlying reality of the legal person is explained as a legal imperative, based on the art. 14 bis of the Constitution, which requires "full protection of the family" and "defending the family property" without restrictions.
The veil of ignorance of the legal personality of the society is necessary, because not only is the benefit of family members, but also family members who are not members of the body but for whom it produces profits represent their livelihood.
In summary: commercial society can affect an urban or rural property to homestead when their members (human beings) have family ties required by art. 36 of Law 14,394 and the profit obtained by configuring a livelihood activities pursued the family.
However, in order to remove any uncertainty, it is desirable that future reform expressly contemplated the possibility that family firms may be constituents of homestead
4. The notion of self-exploitation
Art. 41 points, with respect to what concerns us that the "owner or his family will be forced ... to operate on their own the property he or industry existing ".
Some identify the" explode on their own "to the operation or direct personal or family ownership, ie without the intervention of third parties in obtaining the benefit. (37)
believe that this interpretation is wrong. We continue to Fontarra, who with singular clarity, teaches that "acting as an employee (or in the interest of others) means acting to meet goals or interests of others ...." (38)
therefore mean that it is not necessary that the operation direct personal or by the owner or his family what really matters is that the use is to serve the interests of the family. (39)
It note that this problem will not occur in the hypothesis where the constituent is a sole proprietor, since by definition it is he who performs the operation, (40) but in the case of those who constitute the homestead is a corporation, because the exploitation of the property or "existing industry he" will be realized, and not by the owner or his family.
Regarding the latter case, it is necessary to recall the art. 1 of the Law 19,550 defines commercial society and the statement that: "There will be a commercial enterprise when two or more people in an organized, according to one of the types under this Act, is required to contribute to implement the production or exchange of goods or services to participate in the benefits and bear the losses. "
are advised through the transcribed text that the determining motive of the income of a human person to a commercial company, is the share of the profits it generates. benefits that a family firm up the support of the family.
One could also argue that when several people operating a building he owned, sharing profits and bear losses, would be set a de facto partnership. In this case, is doubt that the operation would be for "self".
worth recalling the thought of von Ihering, who from a pragmatic view, said: "The individual members are the real target of the legal person, but practical considerations require, certainly, that common interests are pursued not by isolated individuals, but by all of them represented by a personal drive superficial. " (41)
As such, we conclude that in a family business where the owner is a partnership, the exploitation of the property or the "industry as it exists" is conducted - ultimately, their own or, better, interests of its members: the family.
5. Necessary majority in the governing body
Regarding the required majority the governing body to affect homestead property whose owner is a legal person, feel that it should apply by analogy - as we advance, the second paragraph of art. 43 referred to the case of condominiums, which states: "If any condominium, management must be made by all the investors, justifying that the relationship between them required by Article 36."
If we intend to examine the underlying reality of society at the time of the assignment, would be antithetical to stick with no corporate regulations governing the issue.
will be necessary to reach unanimity of the members to have involvement.
6. The partners may affect other properties of their homestead property
Art. 45 says: "It may become more of a 'good family'. When someone proves to be the sole owner of two or more family assets, you should choose one's livelihood in that capacity within the period set by the enforcement authority , failing to keep the family as well established in the first place. "
Given such a standard is necessary to consider the possibility that members can personally affect homestead property owned by others.
I express our thinking about that a legal person, certain characteristics may be subject constituent. Therefore, we hold that does not apply the rule in question to members of the collective entity.
cupiere If in doubt, and thought to be deflected understanding that they are actually "members" and not "legal person" constituents, obstaría not to affect other property for homestead, and that would not be the "only" owners of the property.
7. Luck of the effect before the entry of non-family members
The problem is whether we will try to the entry of new members unfamiliar society, after the establishment of the homestead, reversal is required as well.
The issue is not difficult solution because the legislature's intention was to defend the family that existed at the time of its formation (42) and that is why it is held, including the sustainability of involvement in the event of the existence of only one surviving beneficiary who became its sole owner. (43)
Thus, no doubt due to the incorporation of new corporate members - relatives or not, is not due disaffect the homestead, which shall continue until the death of the last beneficiary, since we insist that what the law protects is the family group that existed at the time of creation.
8. The scope of protection
a) on the property. The general principle is poured into the first part of art. 38: "The 'family property' shall not be liable to execution or attachment for debts of enrollment as such, even in the event of insolvency or bankruptcy ..." The rule stated
ruled the seizure and execution of homestead with debts of enrollment.
Thus, to determine the origin of the claim must meet contractual liability on the date the obligation, and in tort to the wrongful act.
The law expressly stipulates some exceptions to the guideline referred for debt of enrollment; lists the following: "... the obligations arising from duties or taxes imposed directly by the property, liens constituted under the provisions of Article 37, or credits for construction or improvements to the property" (art. 38 in fine "). Via case law has expanded the legal list. (44)
b) On the fruit. Art. 39 of 14,394 law rule "will be seized its fruits good as not essential to meet the needs of the family. In no event may however affect more than fifty percent of the fruit."
The principle of the standard is that the benefits generated are attached, except for "essential to meet the needs of the family." Estimated as an expression of this essential minimum fifty percent of the amount of fruit.
The law does not distinguish between categories of fruits, so it is beyond dispute that includes the natural, industrial and civil.
earnings generated by the family business as a result of the exploitation of the property affected or the "industry as it exists", to the extent that we have given to this expression, define the way of life, or rather the "support" family, and therefore enjoy the protection of art. 39 of the law.
Thus, the profits of a corporation generated by the "exploitation" are protected by this provision.
c) Extension to certain things from the farm. The doctrine and jurisprudence conceives dominant commercial farm or goodwill as a universal fact. (45)
Universals are pluralities of goods considered as units. The treatment unit of a set of objects, when it depends on the will of the owner, gives rise to the universality of fact, (46) and a library (a set of books), a flock (group of animals).
Although we can consider the commercial farm as a "whole", note that the integral elements of universality do not lose their original nature.
Art. 1, 11867 law (Adla, 1920-1940, 524) on "transfer of commercial and industrial establishments," stipulates: "It is declared elements of a shop or goodwill, for the purpose of transmission for any title: facilities , stock merchandise, name and trade shows, to customers, the local law, patents, trademarks, industrial designs, the honors and all other rights associated with commercial and industrial property artistic. "
There is general consensus in the literature on that list that makes the rule is merely illustrative, so there may be other elements comprising the hacienda. Fontanarrosa
understood that certain movable members of the commercial farm, as the facilities, equipment, machinery and supplies used for operation, fall within the notion of ownership of the Italian Code of 1942 and founded his opinion in the arts. 2328, 2333 and 2520 of the Civil Code and art. 452, inc. 1, of the Commercial Code. (47)
The notion of ownership is alien to our right, so the identification is made observable. The situation of the Italian scheme is explained by Barbero, saying: "The above code, rather than the category of ' possessions', whose origin is commonly traced to Roman law ..., was introduced, under the Code Napoleon ... the category of 'property by destination' (Articles 413 and 414), which ... offered no explicit possibility of relevance of a link rather than pertenencial regarding real estate. But the doctrine was also careful to trace the 'property by destination' to the general notion of 'ownership' as it is now supported. "(48)
Unlike the Italian Code of 1942, our Civil Code contains more of property by accession moral or purpose, receipted in the art. 2316 Coll. Civil, which states: "things are also real furniture that is made intentionally, as ancillary to a building, by the owner thereof, without being so physically."
In order to set the destination property is necessary for the case of a movable, placed by the owner at the property for economic link with him, and that is not physically attached. The doctrine typically adds the requirement of intent to perpetuate the property affected, as Velez Sarsfield mentioned in the note to art. 2316 with a dedication "to the perpetual use" of the farm.
encoder, to illustrate, says: "So are buildings for accession, seeds thrown to the ground or are taken to that destination, implements of husbandry or mining, or farming animals for the benefit of an estate, presses, stills, rolls, etc., as part of an industrial adhesive to the floor and all supplies, tools, machines, etc., without which these facilities could not function well and fill their destiny ... "(49).
With regard to the possibility of extending the protection of the homestead of these things, Guastavino opted for the restrictive approach, saying: "The property of destination can not become family assets as unfit, in itself, to serve the function of support and housing that law presumes the homestead. Also lack a standard such as Article 3110, expressly extending the mortgage on the property all the accessories. "(50)
The author does not merely discard the possibility of the estate by fate to be the main object of good family, a position that would be incontrovertible. Their thinking goes further and excludes properties by destination and property attachment order concerned. It says "... do not enter the family property regime in Argentine law and are not therefore , submitted to the inalienable and indefeasible status simply because the constitution of the homestead on the property where located. "(51) Contrary to
Guastavino concluded, we think that the properties by destination satisfaction attend the family livelihood, for as envisioned Velez Sarsfield in his note to art. 2316, the exploitation of the property would not be feasible ("could not work") or would be inefficient ("fill well your destination), without the contribution of used furniture (52).
not understand how it could be carried out without operation essential elements for deployment. (53)
The reference to the absence of a standard, like the art. 3110, extending the mortgage to your accessories, it is submitted. Indeed, to regulate the property by accession, Velez Sarsfield cautioned that the deal "accessories to virtually extend the property, or art. 2522, also included the moral property by accession. (54)
conclude that the facilities, equipment, machines, supplies used for operation and other personal property to satisfy the requirements of art. 2316 of Civil Code, become immovable by destination or moral accession, and being indispensable to the exploitation of the property, they are also extending the homestead protection. (55)
9. Real subrogation
What we now discuss is whether the owner of a family, individual or collective entrepreneur, can move their operation to another property and move on this the effect on family property that was the original.
peaceful doctrine is not 14,394 as the law is silent on what would be the fate of the homestead protection in that case. (56)
share, however, expressed the strong arguments in favor of the legality of surrogacy.
In this regard, reflected: "Here the issue primarily from the perspective of the creditor. What harm can bring real subrogation? Frankly, I do not see any. First, if the debtor can not replace a building on the other as a family asset, is sure to not alienate so the situation the creditor has to improve. Moreover, it is likely to worsen, since it is not unreasonable to think that the reason that the debtor has had to sell and buy another of either cutting costs, and if this is the reason, the impossibility of doing this operation leads to envisage a diminishing ability to meet the obligation. Second, the creditor may be benefited if the property being acquired is less valuable than it is disposed. In this case, the difference may be designed to take the credit. Finally, if the new well is more expensive than the original, may not exceed the values \u200b\u200bset to incorporate it as a homestead, if exceeded, will be unaffected and being attacked by the creditor, otherwise, we will be in the same situation that existed with the original constitution. From the standpoint of the debtor, the impossibility of such a substitution is presented as a sort of slavery to reside indefinitely in the same place. "(57)
is no doubt that replacing the building would not be detrimental to creditors and, in some cases, may even benefit them.
On the expressive image of "a kind of slavery," we believe that sins of "rhetorical excess" and that "... sufficient fence art directives. 531 of the Civil Code, which prohibits illegal especially certain conditions, strict guidelines applicable at least to family property destined for the room, then closed in inc. 1, the imposition of "living forever in a particular place or hold the election of domicile to the will of another '" (58).
For the arguments presented, we argue that positive law entitles the owner of a homestead moving from building to maintain its involvement. (59)
Special to The Copyright Act (Law 11.723).
(1) Zavala Rodriguez said, to develop the social function of the company, which "... must not reach distant targets are linked only to the legitimate interests of employers, but the state, employees, consumer society "(Zavala Rodríguez, Carlos J., Business Law, Depalma, Buenos Aires, 1971, No. 93, p. 130).
(2) Joy says that the protection of the company involves one hand, "... overcome the traditional dichotomy of creditor-debtor, and incorporate other interests that pivot on the whole organization." Is that among these interests come into consideration: the workers, suppliers, customers, community, national, regional or local market as a whole and the State (Alegria, Hector, "Dialogue of economics and law and social and cultural convergence in insolvency," Rules and principles of commercial law, La Ley, Buenos Aires, 2008, pp. 154 to 156). The principle of conservation of the company, which comes in various scenarios, it follows in particular from the point of art. 100 of Law 19,550 and in general bankruptcy law, where it stands - with the supervision of credit-as an axis basilar system (See Rouillon, Adolfo AN, System of insolvency and bankruptcy. Law No. 24,522, 15 th Edition, Astrea, Buenos Aires, 2007, pp. 38 and 39).
(3) See Favier Dubois (h), Eduardo M., "The family firm against Argentine law. Towards sustainability recognition and legal doctrine," ED, 236-729.
(4) The American Declaration of the Rights and Duties of Man of 1948 stipulates in art. 6: "Everyone has the right to establish a family, a fundamental element of society, and to receive protection for her." Also, the Universal Declaration of Human Rights of 1948 states: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State" (art. 16, paragraph 3); same statements are read in the arts. 17 of the American Convention on Human Rights (Pact of San José de Costa Rica), 1969 and 23 of the International Covenant on Civil and Political Rights 1966. The International Covenant on Economic, Social and Cultural Rights of 1966 shows that: "should be accorded to the family, which is the natural y fundamental de la sociedad, la más amplia protección y asistencia posibles…" (art. 10, punto 1).
(5) Art. 2082: "Es empresario quien ejercita profesionalmente una actividad económica organizada a los fines de la producción o del cambio de bienes o de servicios".
(6) Art. 2555: "La hacienda es el conjunto de bienes organizados por el empresario para el ejercicio de la empresa".
(7) A partir de la definición propuesta se infieren sus elementos constitutivos, a saber: a) Elemento subjetivo: es el empresario, titular de la empresa, quien la organiza, dirige, explota y asume los riegos de la actividad que se despliega. Puede ser un persona humana (empresario individual), or a legal person (employer group). b) objective element: the farm business or goodwill, which is the set of assets of the company, its substrate material. c) or dynamic intangible element: not an activity organized by the employer is not firm because the property is not a real anarchic juxtaposition but a set of assets aimed at one purpose: the production of goods or services. The activity involves the work of others (Conf: Butty, M. Henry, in Halperin, Isaac and Butty, Henry M., Trade Law Course, 4 th edition, Depalma, Buenos Aires, 2000, V. I, pp. 95 and 96).
(8) Conf: Favier Dubois (h), Eduardo M., op. cit., p. 731. With different views, it was argued that "... it is necessary that members of society make it their lifestyle to consider the company as a family, since this is not a distinguishing feature, because both are family businesses where it is the primary source of income of its members, as when the company is only one way to raise funds, as the problems and benefits that characterize the family business organization is presented as "(Medina, Graciela," family business ", LA LAW, 13/09/2010).
(9) Favier Dubois (h), Eduardo M., "Financing family business and financial results for the payment of conjugal society, "LAW, 07/06/2010. It has also been defined as:" The company that regardless of the legal organization that has - individual or a corporate enterprise, "a group of people bound together by marriage or a family relationship, have an ownership of it, enabling them to impose their will on an ongoing basis in government and in the direction of the company, basing the business organization in the company, with the intention of keep in successive generations (Azzarello, Martin S., "The family business and its protocols", Journal of Attorney No. 960, pp. 730 and 731).
(10) According to the Dictionary of the English Royal Academy membership of the word, in the fifth sense, meaning "facts or circumstances of being part of a whole, as a class, group, community, institution."
(11) Azzarello, Martin S., op. cit., p. 724.
(12) CNCiv., Room A, 06/08/1986, "G. P., RE and other", ACT, 1986-E, 309 - DJ, 1987-1, 325, and appointments. Also: C. Apel. Civ and Com., San Isidro, Room I, 26/03/1996, "G. R., C. c. R., RJ", BALF, 1996-432; CNCiv., Room K, 20/06 / 1996, "N. B., LG c. B., JM", ACT, 1997-F, 310 - DJ, 1998-1-507, C. Apel. Civ, Com. and Guarantees Criminal, Necochea, 29/03/2001 "Gomez, Horacio R. c. Corapi, Francisco", BALF, 2001-980.
(13) Vidal Mariani, Marina, real rights course, Zavalía, Buenos Aires, 1993, t ° II, p. 74; Areán, Beatriz, Well Family, Hammurabi, Buenos Aires, 2001, No. 11, pp. 31 et seq.
(14) Alterini, George H., in Lafaille, Hector and Alterini, Jorge H., civil law. Treaty of real rights, with special collaboration Alterini Ezequiel Ignacio, 2 nd Edition, The Law, Ediar, Buenos Aires, 2010, t ° III, No. 1012 bis, pp. 78 and 79.
(15) Alterini, Jorge H., op cit., No. 1012 bis, pp. 84 ff.
(16) 39: "They will be seized its fruits good as not essential to meet the needs of the family. In no case may affect the embargo more than fifty percent of the fruits."
(17) On the notion of self-exploitation, see Section 4.
(18) We do not see grounds to maintain, as Julio César Rivera has done when he worked as Judge House, that "... 'exploitation' is relevant when it comes to property aimed at satisfying the breadwinner feature that corresponds to rural properties ... "(CNCom., room D, 13/08/1984," Buroker, Robert C. Canale, Rodolfo L. ", ACT, 1985-B, 249). The point of art. 41 does not make any distinction between the exploitation of urban and rural properties, and do not believe that this distinction can settle in apoyaturas convincing.
(19) Bossert, Gustavo A., in Civil Code and complementary legislation. Reviewed, noted and agreed, led by Augusto Cesar Belluscio and coordinated by Eduardo A. Zannoni, Astrea, Buenos Aires, 1986, t. VI, p. 324. Match: Fajre, José Benito Areán, Beatriz, op. cit., No. 289, pp. 263 and 264.
(20) Compare with the notion of "self" which will appear in paragraph 4.
(21) Fazio Bello, Marta Encina and Martinez, Nora Beatriz, Well Family, La Ley, Buenos Aires, 2009, p. 101.
(22) Guastavino, Elijah P., patrimonial family law. Homestead, 3 rd edition, updated by Eduardo Molina Quiroga, La Ley, Buenos Aires, 2010, t. II, No. 375, p. 151.
(23) Alterini, Jorge H., op. cit., No. 1012 c, p. 94.
(24) Guastavino, op. cit., No. 375, p. 150.
(25) Favier Dubois (h), Eduardo M., op. cit. in note 3, pt. 6.
(26) Areán, Beatriz, op. cit., p. 74. Against: Fazio Bello, Marta Encina and Martinez, Nora Beatriz, op. cit., p. 101.
(27) View Lafaille, Héctor, op. cit., nos. 1060 and 1094, at pp. 225, 299 and 300. In this last reference invoked "several positive rules, impossible to conceive without a subject." It was also clear in the outstanding thesis to undertake interventions in the debates of the Civil Law Section of the Argentine Institute for Legislative Studies (See "Proposed Reform of the Civil Code." Records of the Civil Law Section of the Argentine Institute for Legislative Studies Argentina Federation of Bar Associations, Volume V, "Rights on things", Buenos Aires, 1962, p. 221: "The condo is a subject of very limited right ... anyone who said that the condo is abortive society. ")
(28) Lafaille, Hector, real rights course, 3 rd edition, Buenos Aires, 1929, No. 615, p. 440. It seems that society regards indeed.
(29) Conf: Halperin, Isaac, in Halperin, Isaac and Butty, Henry M., Trade Law Course, 4 th Edition, Depalma, Buenos Aires, 2000, V. I, p. 355.
(30) Jorge Horacio Alterini This reflects that "a treatment of this problem will have to issue with the hypothesis of the existence of a good family since it was established that the component has no family, although family members benefited from the establishment by a family company, attentive to teleology oriented family heritage ", in 1169 he read his note: "These concerns have given special attention to the contributor of this update and commentary, Ignacio Ezequiel Alterini who dump them in another study, listening to the natural limits to this condition" (see Alterini, Jorge H., op. Cit., No quater 1012, p. 94).
(31) Guastavino Elijah says that: "The contribution of homestead to a civil society or business, whether owned or in use, is invalid. If property contribution was a translation of the domain would involve a transfer in for the social body, and fall under the prohibition of transfers of Article 37 of Law 14,394. If it is intended to provide only the use, the act would violate the obligation under Article 41 of the Act, which imposes a duty to occupy or operate the property on their own "(op. cit., No. 497, p. 299). In the same vein: Areán, Beatriz, op. cit., No. 158, p. 150; Fazio Bello, Marta Encina and Martinez, Nora Beatriz, op. cit., p. 171.
(32) Sessarego Fernandez, Carlos, "Notes on the abuse of legal personality "Journal of Private and Community, No. 16, 1998, p. 32.
(33) CN Paz, en masse, 29/11/1968," Anchorena Fernández, Juan A. and other c. Semadeni, Lorenzo and others, "ED, 29-69.
(34) is remarkable Dr. Fornés vote when lights:" It is true that society ... is a legal entity with its own personality and responsibility, but so is that it is formed by a group of people undertake each with a provision to make a profit to split ... and it is therefore obvious that the background of this personality are always present human beings who compose ... In this vein, it is unreasonable to be done in eviction of tenants who have moved to rectify the situation to constitute a society ... Note that its members are just the same tenants, and if so, can not validly argue that there is genuine and effective 'transfer' to merit the aforementioned company is nothing but an entity after which are always the same people. "ponderable also the reasoning of Dr. Abelleyra:" Society can be a third party with respect to the landlord, but a third has only a conventional existence and fictive, which does not cause a mutation reality that affects the landlord, since occupied and used local follow their own benefit by the same tenants that they did since they constitute ".
(35) View the status of the issue, both in doctrine and as in jurisprudence, in: Roitman, Horacio, Law of Corporations. Annotated and recorded, La Ley, Buenos Aires, 2006, t ° I, pp. 698 et seq.
(36) Halperin, Isaac, in Halperin, Isaac and Otaegui, Julio C., Corporations, 2nd edition, Lexis Nexis, p. 149, the author cites the precedent of the Supreme Court "Mellor Goodwin SA" of 18/10/1973.
(37) Bossert, Gustavo A., op. cit., p. 308; Fajre, José Benito Areán, Beatriz, op. cit., No. 298, p. 272 et seq. In this regard, with respect to the location, it is said: "It must be the reversal as a homestead the property rented in its entirety, because it ignores the requirements of Art. 41 of the 14,394 law ..., this is that the owners live or operate on their own or an existing industry (The partial dissent Dr. Ramirez) (CNCom., Room E, 07/12/1999, "Lancuyen SA c. L., AH", La Ley Online). See also: CNCom., Room D, 13/08/1984, "Buroker, Robert C. Canale, Rodolfo L.", ACT, 1985-B, 24; C. Apel. Civ, Com. and Guarantees in Criminal, Necochea, 29/03/2001, "Gomez, Horacio R. c. Corapi, Francisco", BALF, 2001-980).
(38) Fontarra, Rodolfo O., "Notes for a general theory of representation with particular emphasis on commercial matters," LAW, 78-871.
(39) Conf: Alterini, Jorge H., op. cit., No. 1012 bis, pp. 85 et seq.
(40) See our note 7.
(41) Von Ihering, R., The spirit of Roman law in the various stages of development, translation by Princes and Satorres, t. IV, Madrid, 1912, pp. 380 and 381.
(42) CNCiv., Room E, 24/08/1979, "Oliver, Mary RL", ACT, 1979-D, 94 - DJ, 979-12, 18; CNCiv., Room A, 10/03 / 1986, "Pueyrredón, Ignacio E., suc." LAW, 1986-D, 360, with note of Carlos AR Lagomarsino, DJ, 1986-2, 931; CNCiv., Room C, 31/03/1986 " Fernández, Maximino and other Sues. "LAW, 1986-D, 362 - DJ 1986-2, 930; CNCiv., Room K, 13/09/2005, S., MA et al v. M., NE ", La Ley Online.
(43) View Alterini, Jorge H., op. cit., No. 1012 bis, pp. 80 et seq.
(44) With regard to expense stated: "The immunity from seizure of homestead is unenforceable to the expense claim arising in common, since the obligation to help pay the costs and expenses necessary for the maintenance of the building affected the horizontal property regime has its source in the regulation joint ownership and management, which is pre-existing involvement made by owner "(CNCiv., Room E, 23/08/1995," Ayacucho 1735/43 Owners Consortium Ocampo v. Lozada, Juan and other "LAW 1996-A, 686). In the same vein: CNCom., Room A, 29/02/1996, "Herrera, Ramon S. s / bankruptcy," ACT, 1996-D, 49; CNCiv., Room A, 26/09/2000, "Cons .'s Prop. Art Tower Bldg c. Mayo, Mark D. and another, "Online Law; CNCiv., Room K, 24/04/2009," Consortium of Prop. Vedia No 1650/1654 c. Puga Matta, Lucia ", DJ, 28/10/2009, 3071. Also, case law, excluded the credit for food:" The involvement of a building the family property regime is not effective against the creditor for a debt food - in the case, overturned the decision intervention for failure to provide the mother and sister of the defendant, co-owners of the property, "it is not just due to the omission of the 14,394 law ... equity to grant immunity not fulfilling its essential duties, and because serious reversal in the opinion of the competent authority to be the just punishment of the culpable breach of duty of food, as authorized by Art. 49 inc. e) of the Law "(C. Apel. Civ and Com., Mar del Plata, Room II, 23/09/2008," Hernandez, Mirta G. c. Nevyl, Hector E. ", BALF 2008 (November) , 1143). Conversely, it was held: "The maintenance obligation can not be played on the homestead itself, since the law 14,394 ... not exempts the principle of unenforceability "(CNCiv., Room E, 17/10/2005," C., MA c. S., MA ", ACT, 2006-F, 819). In middle position, it was found "If the event is of the maintenance before the establishment of the property as a family asset, not is relevant to that part of the debt became due after the registration, since the title precedes the aforementioned time involvement. In this case, reversal is not from the total, pure and simple of good family, but declare unenforceable as against the creditor food, subsisting registration against other debts for which it is enforceable (CNCiv., Room D, 22 / 04/1991, "F., A. and Another v. M., H.", ACT, 1991-D, 318 - DJ, 1991-2-655, in similar vein: CNCiv., Room K, 22 / 05/2002, S. D., MS c. D., J. ", DJ, 2002-2-758). In regard to current account credits, he said: "The fact that the determination the outstanding balance of bank account later than the involvement of a building under the regime of good family, not the registration becomes effective against the creditor if the contract is earlier, it is usual that during implementation the client perform operations Credit closely linked to the service provided by the cash account, so that the legitimate expectation of the bank of assaulting his client's property was generated with the conclusion of the contract "(CNCom., Room E, 12/11/2002," Bank del Buen Ayre v. Pinto, Sergio A. and another, "ACT, 2003-D, 537).
(45) Satanowsky, Mark, Treaty of commercial law, Typesetting Editora Argentina, Buenos Aires, 1957, t. III, 38, p. 101; Halperin, Isaac, in Halperin, Isaac and Butty, Henry M., Trade Law Course, 4 th edition, Depalma, Buenos Aires, 2000, V. I, p. 94; Fernandez, Raymond L. and Leo Gomez, Osvaldo R., theoretical and practical Treaty of Commercial Law, Depalma, Buenos Aires, 1987, p. 394, Butty, M. Henry, in Halperin, Isaac and Butty, Henry M., Trade Law Course, 4 th edition, Depalma, Buenos Aires, 2000, V. I, p. 95; Romero, José I., Manual of commercial law. General part, 2 edition, Abeledo Perrot, Buenos Aires, 2008, p. 108; Pepe, Marcelo Antonio, usufruct of goodwill, ACT, 2007-C, 1103.
(46) With regard to the commercial farm, Satanowsky reflects that the legal problem does not arise "... on the unique elements that make up and have their own legal relevance, but about your organization as a unit ... then comes to be constituted with the set of heterogeneous elements of things and property, independent of each other but with legal regulation unit itself ... In the way it is currently legislated, the commercial finance ... is a universal fact, the lack of autonomy and equity unlimited liability of the owner ", who organizes and affects an end. (Satanowsky, Mark, Treaty of commercial law, Typesetting Editora Argentina, Buenos Aires, 1957, t ° III, nos. 31 and 38, pp. 80, 81 and 101).
(47) Fontarra, Rodolfo O., Argentine Business Law. General Part, 9 th edition, Zavalía, Buenos Aires, 2001, No. 173, pp. 211 and 212.
(48) Barbero, Domenico, private law system, translation of Santiago Sentís Melendo for the 6 th edition of the work, Ejea, Buenos Aires, 1967, t ° I, No. 156, pp. 316 and 317.
(49) is also illustrative art. 12 of the Mining Code, to establish "property are also considered things for exploitation in perpetuity character, such as construction, machinery, tools, animals and vehicles used in the interior of the membership service, whether surface or underground, and supplies necessary for the continuation of the work being in the mine, for a term of one hundred twenty (120) days. "
( 50) Guastavino, Elijah P., op. cit., No. 344, p. 96.
(51) Guastavino, Elijah P., op. cit., No. 344, p. 96.
(52) Conf : Alterini, Jorge H., op. cit., No. 1012 e, p. 101.
(53) Conf: Fazio Bello, Marta Encina and Martinez, Nora Beatriz, op. cit., p. 81; Alterini , Jorge H., op. cit., No. 1012 e, p. 101.
(54) Conf: Alterini, Jorge H., op. cit., No 1012 e, p. 101.
(55) Our conclusion can be seen in a judicial precedent which held that while an air conditioner is movable property that can not be classified as property by accession or entity, not possible extension the protection afforded by the Law 14.394 (CNCom., Room C, 12/06/1991, "Farms LLC v. Lashway, Delfin s / Exec." JA, 1991-IV-390). Means that if a movable property may be conceptualized as physical or moral per accession, it will extend the protection of the homestead.
(56) See a state of affairs in: Alterini, Jorge H., op. cit., No. 1012 sexies pp. 101 et seq.
(57) Borda, Alejandro, "The replacement of a good family. (The need for legislative reform)," ACT, 1992-E, 387.
(58) Alterini, Jorge H., op. cit., No. 1012 e, p. 105.
(59) There is some case law that supports current real subrogation of the property being the homestead: "The replacement of the homestead not only has constitutional significance to the owner but it affects the family but has no right on housing has a right to homestead, supra constitutional basis and would be overwhelmed constitutional afford not to replace other property acquired in the sale of the former, in the interest of the creditors of the component of homestead failed, disvaliosa axiologically solution because it prioritizes economic interests on the protection of the family home "(C. Apel. Civ and Com., San Isidro, Room I, 03/02 / 1997, "Kipperband, James c. Register of Deeds of the Province of Buenos Aires", BALF, 1997-530). In the same vein: C. Apel. Civ and Com., Rosario, room I, 15 / 10/2002, "Botto, S. Dart and another, "LL Litoral 2003 (February), 115; C. Apel. Civ and Com., Rosario, room I, 11/06/2003," Gil, Jorge A. ", DJ, 2004-1-887 - LL Litoral 2004 (March), 127, with note Cossari GA Nelson, DJ, 2004-2-110, with a note Nelson GA Cossar
History 
