2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 6 9
bargaining projection
trust more than a decade of sanction of the law
24,441 * María José Pérez
Clouet
I
CONTENTS . Introduction. II. The trust: its concept and
legal characterization. Legal nature. III. The
contract
trust or testamentary trust and domain trust. IV.
parts of the trust agreement. V. Onerous or free business
final. VI. The so-called "trust assurance
" characterization. VII. Regarding ownership of property transfer
the settlor to the trustee:
precautions. VIII. Dominial transfer of property
verified by the trustee trust property.
Collections. XI. The acquisition
regarding ownership of a property for the trust funds in trust.
Collections. X. The replacement of the trustee and the trust property
transmission.
* This work won the prize in the individual works in Buenos Aires
Notarial Day XXXV, held in Tandil, from 7 to 10 November 2007. Corresponds to the topic of this
I call: The trust more than a decade after the enactment of Law No. 24,441.
PAPERS
1. The trust is a legal act constituted unilateral (
trust probate) or bilateral (contractual trust) that uses trust
transmission of certain assets or the assets of the settlor things
for the implementation of other legal acts or business, specifically to
through the trust as the vehicle for channeling the intended purpose
by the settlor at the time of its formation. Doctrine
6 7 0 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL 2. The trust agreement is completed with the agreement of the parties
while living trust produces its effects from the implementation
exteriorized the will of the settlor. In both cases
is necessary for its completion the
concomitant transfer of fiduciary ownership of the assets comprising the trust property.
3. Must refer only to the trust domain where the object transferred in trust
what certain things are existing and which are not
outside the store. In these cases shall apply
regulated by Civil Code for the transmission of real right of ownership.
4. For goods that are not things, we reserve the name
trust property and in this sense the transmission is governed by the provisions in the Code
fund transfer credit.
5. The trust domain is a domain of imperfect
subspecies recognized by the Civil Code
6. Transfer under the title of trust, the settlor
verified by the trustee, not a breakup of its domain, which is fully transferred
.
7. The right of beneficiaries and trustees to the settlor
require compliance with the contractual or testamentary
is personal.
8. Law No. 24,441 does not support the assumption of trust
or condominium ownership, but the appointment of a trustee and their substitutes
singular correlated, if the removal of the first.
9. Reception co-ownership or condominium rules trustee under
other than the Civil Code can only be considered with the
legal creation of a new category or manorial estate
self involvement, through a regulation expressly providing for the undivided forced
the ownership of the term of the trust
10. Law No. 24,441, has not repealed the Civil Code Article 2841,
situation should be considered at a future legislative reform, as
currently there are no arguments to justify their livelihood.
11. The trust agreement may be onerous or gratuitous, according
the work of the Trust is paid or provision
accomplished without obtaining any in return.
12. The transfer of ownership under the title of trust, the settlor to the trustee
is not onerous or gratuitous.
13. For the execution of the trust agreement, payment shall be restricted
stamp tax when
is expressly provided that the trustee does not receive remuneration for the work assigned.
14. The trust agreement is bilateral,
held between the trustor and the trustee. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 7 1
15. Under the existing legal order, it is declared invalid
of "trust unilaterally. "
16. The trustee must not gather as beneficiary or trustee
of goods and things into trust under its ownership.
17. Is no stipulation or provision which provides that the remuneration of the trustee
must be satisfied with the goods or things that make up
the trust property.
18. Is valid trust agreement entered into between spouses.
19. By rule of paragraph 1 of Article 1807 and Article 1358 of Civil Code
is invalid the trust agreement in which one spouse is the settlor
and the other spouse is the designated beneficiary or trustee of the trust assets
.
20. The legal regime applicable to legitimate heirs
is binding on the trust agreement and the testamentary trust, regulated by law
24,441.
21. The conclusion of a collateral trust agreement is lawful,
under existing law, unless the same is done in fraud of creditors
of the settlor.
22. The trust is a security guarantee
personal nature.
23. Accessoriness principles and specialty
required by legal order for the valid constitution of the mortgage,
unenforceable for the validity of the trust as collateral.
24. The existence of the cause and source of the obligations secured by a trust
warranty may be before, during or after the conclusion
of the trust agreement.
25. It is advised that the creditor's compliance with the obligation
guaranteed, may not match the security trustee for the trust, notwithstanding that
this budget is not expressly prohibited by law
24,441.
26. Failure under the settlor,
under article 17, does not cause the invalidity of the transfer.
27. When the trustee refuses to give its agreement, in
terms of Article 17 if the transmission is required by
purposes of the trust, the trustee may obtain extra judicial authorization.
28. With the exception of the judicial removal of the trustee, the court
statement of your disability and death in cases of termination under
by art. 9 of Law No. 24,441, the transfer of the trust assets
the substitute trustee shall be governed as to title, and so
registration by the provisions of the Civil Code. For his part, as relevant to the trust property
shall apply the rules
the transfer of credits. Doctrine
6 7 2 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL I.
INTRODUCTION More than a decade after the enactment of the law 24.4411, projected
legal text in the trusts-designed as vehicles for achieving multi
negocios2, has raised a number of questions regarding the origin
of regulations issued and forecasts contractual or testamentary
structured by its licensors.
In this framework, practitioners have acquired a vital role
evidenced by their necessary action in order to advise-giving
actors and indict the will of the parties
reason for the intended purpose.
Furthermore, we find that the ductility in Figure trust and their progressive increase
adoption for new business generation
require a legislative reform to ensure a higher degree of legal certainty
employment of the trust established by acts
between the living and the so-called living trust.
This paper aims to outline some of these issues, pose
faced with professional legal counsel and possible responses,
under the current regulatory regime, without omitting the
proposed legislative changes that facilitate the development of trust
beating the admonition of their disability, inefficiency and / or unenforceability.
II. THE TRUST: THE LEGAL CONCEPT AND CHARACTERIZATION. LEGAL
The article 1 of Law No. 24,441 provides that "there
trust when a person (trustee) to transmit the fiduciary ownership of specific assets
to another (trustee), who is obliged to exercise the benefit of those who
1 Published in the Official Gazette of 16/01/1995. Before his penalty and in favor of "universal trust"
see: Azpeitia, Alberto Mario, De Hoz, Marcelo Armando. "Problems of the new forms of ownership
" Laureano Arturo Moreira Seminar XXIII, 19 and 20 September 1991
, pg. 9 to 13.
2 Among them, include: a) the unbundling for the construction of a building,
further involvement in the scheme of the national law of horizontal property and selling the resulting
functional units, b) the administration of estates trust property in favor of certain persons for altruistic
or to maximize the benefits of integrating the heritage assets in favor of the settlor
c) the establishment of the trust as security for all types of obligations owed by the settlor
, d) victim's assets for the benefit of a third party
unable or settlor himself, providing their incapacity supervening, c) to attract investment in their characters
of settlors to generate a business in common, d)
testamentary disposition that provides for the involvement of some part of the estate of "settlor" cause "for the specific purpose
compliance, such as be the granting of awards, scholarships, financial aid to various institutions
, maintenance or hiring people to perform certain work
in honor of the testator or his designee; etc. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 7 3
is designated in the contract (beneficiary) and transmit it to comply with a term or condition
the settlor, the beneficiary or the trustee. " Meanwhile
Article 2 refers to "contract" should be individualized to the recipient
Article 3 provides that the trust can be established by will
. Article 6 °
fixed the trustee must act as a good business man
on the basis of trust placed in him.
Articles 14 and 15 provide that the trust assets are
separate assets of the estate of the trustee and the settlor,
exempt individual or collective action of its creditors. Finally
and rule of Article 16, the lack of assets and trust property
to meet the obligations of the trustee
in the execution of the trust, does not give rise to the declaration of bankruptcy
but settlement procedure set forth therein.
of the legal definition and the aforementioned
we can conclude that the trust may be held by an act inter vivos or testamentary
road.
In both cases we note the existence of the following characterizing
:
a) The person of the settlor, the individualization of the trustee and the determination
beneficiaries and trustees.
b) The assignment of trust the settlor to the trustee, which will determine the purpose of
exercise of the trust property for beneficiaries
and his last transmission to the trustees.
c) The generation of separate assets
personal assets of the settlor and the trustee.
d) Property Trust Trust imperfect, subject to compliance
a term or condition.
e) The liquidation procedure under Article 16 of the Act
24,441 to the failure of the trust assets referenced,
Escrow excluding the application of legal rules and bankruptcy
contests. All these factors argue
regulatory autonomy and trust
conceptual relation to the remaining contracts or legal forms.
This is a unilateral legal act up (living trust)
or bilateral (contractual trust) that uses the transmission
trust of certain assets or the assets of the settlor things
for performing other acts or legal transactions, specifically to
through the trust as the vehicle for channeling the intended purpose
by the settlor at the time of its formation. Doctrine
6 7 4 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL III. CONTRACT OF TRUST OR TRUST PROBATE AND TRUST MASTERY
We differentiate the trust agreement or trust
established by will of the transfer of ownership or control
trust verified by the trustee for the trust.
The trust agreement is completed with the agreement of the parties, while the trust
testamentario3 produces its effects from the implementation
externalized the will of the settlor.
In both cases, it is necessary for its completion, the concomitant
transferencia4 of fiduciary ownership of the property constituting the trust property
.
for the contract or testamentary trust is created, among others, the following obligations and rights
Personal:
a) For the trustee, the obligation main purpose is to transfer the ownership of certain assets
trust. In the trust agreements,
you can match the right that the trustee will account for its
actuar5. It also has the right to require the removal court
the trustee for breach of its obligations.
b) For the Trust: to comply with its obligations as a good business man
acting on the basis of trust placed in him;
accountable for their actions to the beneficiaries (and trustee), get paid for their
work.
c) For beneficiaries: the right to demand accountability
owed by the trustee and for the duration the contract, the right to received
3 In a doctrinal position that do not share, see: Assandri, Monica; Faraoni, Fabián E., Murua,
Daniela. Testamentary trust and a subsequent contract, Jurisprudence Argentina, 1999-III, pg.
1036, those who believe that the purpose of ensuring effective
living trust is necessary to hold a subsequent contract between the organs of the estate and the trustee. 4 In contrast
: Biagosch, Facundo Alberto. Trust. The trust assets as equity
assignment, in Fourth Conference on Commercial Law Institutes Corrientes 1997, Ed Ad-Hoc, Buenos Aires
, pg. 5 Although
176 law only expressly provided for this right beneficiaries
head (art. 7), we believe that there is no reason to contemplate in favor of the settlor in the contractual agreement.
also do not discount that is implicitly included in the powers assigned
Article 9 the court removing trustee to the trustee for breach of obligations
charge, as to warn that failure should have the right to
demand accountability of the act of the trustee.
Nevertheless, the issue is no less from the orbit of the liability of the trustee and its possible extension
the trustee as custodian of the thing causing the damage. Under this
Finally, we discourage the inclusion of this right in the contractual stipulations. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 7 5
bir benefits instituted to please those who can pass freely, unless otherwise
settlor.
d) To the trustees: this is a personal right to demand the delivery
remaining trust assets upon the termination of the contract
.
III.1. Estate or trust property: the object and its transmission
According to Article 11 of Law No. 24,441, "on the trust property constitutes
trust property governed by the provisions of Title VII
Book III of the Civil Code and the provisions of this Act
when it comes to things, or that may correspond to the nature
of goods when they are not things. " Given the terminological imprecision
suffering Article transcripto6,
understand that this is just referring to the trust domain
when the object of the trust are transferred in certain things,
existing and are not out of business. In these cases applies
as regulated in the Civil Code for the transfer of the domain
real.
Note that Article 4, item c) requiere la individualización de
los bienes objeto del contrato, pero también permite que, al no resultar
posible tal individualización a la fecha de celebración del fideicomiso, se
deje constancia de la descripción de los requisitos y características que
deberán reunir. De esta manera, el objeto del contrato de fideicomiso
puede ser una cosa determinable, no obstante que deba ser determinada al
tiempo de la transmisión dominial en fiducia.
Para los restantes bienes, reservamos la denominación de propiedad
fiduciaria y en este sentido su transmisión se regirá por lo previsto en el
Código de fondo para la cesión de créditos7.
III.1.1. Legal nature of the trust domain trust
The domain is a domain of imperfect
subspecies recognized by the Code Civil8.
6 Held on items that make up the rest of Chapter III of Title I of Law No. 24,441.
7 ITURBIDE, Gabriela A. The trust agreement under the trust business,
Court Argentina, 1998-III, pg. 820. TRANCHINI
DI MARCO, Marco H. Trust: the contract, the ownership and control trust
ATTORNEY REVIEW No. 929, pg. 81.
8 See Art. 2507, 2661 and 2662 of the Civil Code. Doctrine
6 7 6 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL difference corresponds the full ownership of the trustee, as the latter lacks the character
perpetuity because its duration is subject to compliance
: a) a period not exceeding 30 years
counted from the conclusion of the trust agreement or its
via testamentary provision, b) the assignment of trust established
the guarantor, and / or c) one or more other conditions.
In our opinion the transfer in trust by the settlor
verified the trustee does not constitute a break-up of your domain. We disagree with ORELLE
who warns that the trustee has been
domain regulated as a category distinct autonomous domain
common "owner trust that is subject to a condition subsequent
and for the recipient to the condition precedent" 9.
As we said earlier, we differentiate the domain
rights under those from the trust indenture
or living trust. For us, the right of beneficiaries
limited to a personal credit against the trustee and
aimed at the perceived benefit, instituted in his favor on
the trust property, without giving any real action or right to ensure their
compliance. In short, due to beneficiaries or
trustees only a personal right to require the trustee
compliance of the contractual or testamentary
arising from the contract or will and no real law becomes domain trust
exclusive property of the trust.
III.1.2. Condominium ownership and trust
The trustee is exclusivo10 domain. As such, two
trust can not be in possession of the entire domain of the trust assets, but this does not preclude
to tenants in common can be the same thing
proportion corresponding to each of them.
We ask ourselves about the viability of the joint ownership and / or condominium
fiduciario11 in both the trust
integrates more than one person, hold an undivided part of the separate estate. 24,441
law, Title I, Chapters I to III and VII, the trustee
mentioned as a "person" in the following articles: 1, 4, 5, 6, 7, 8, 9, 10, 13, 14 ,
9 ORELLE, José María. "The Trust Law No. 24,441", La Ley, 1995-B, pg. 879.
10 Civil Code Section 2508. 11
reserve the word "condominium" for things and ownership for goods that are not
things, as what is prescribed by Article 2674 Civil Code. Doctrine
2 0 0 7 / JOURNAL ANOTARIAL 9 5 7 / 6 7 7
15, 16, 17, 18 and 26. There is no legal reference to the collective
fiduciary sense. In any case referred to "the trustee" in the singular and
expressly provides in Article 5 that "may be any natural or legal person."
These considerations compel us to conclude that the current regulatory text
not cover the situation of two or more trustees, but the appointment of a trustee
and correlative substitutes, in case of cessation of
first.
Without prejudice to the position taken, we would argue
study hypothesized that in the absence of an express prohibition, such a situation
of ownership is allowed.
In this regard, we note that the condominium created
attention should be applicable in this case the rules contained in Title 8 of
Third Book of the Civil Code.
According to Article 2676, the Trust could become
condominium contract (trust agreement) or by acts of last will
(testamentary trust).
III.1.2.1. Division commonplace
The condo has been regulated by our encoder as a state transition
propiedad12, subject to the division of the common thing that
can be requested by each owner at any time13. While
is allowed to the homeowners to agree to suspend the
division for a term not exceeding five years and renew this agreement
all times relevant, Article 2693 in its first
hand, provides that the co-owners (trust ) can not indefinitely
waive the right to request the division.
Similarly, the settlor could not impose a state of undivided
for longer than five years in the trust agreements and ten years for
made via testamentaria14.
Now, we could argue that, under the limitations imposed
no obstacle to the admission of co-ownership or condominium trust.
For example, it may be that a trust agreement is
held for a period of four years and that the settlor forward properties
12 Papan, Ricado J., Kiper, Claudio M., Dillon, Gregory A. and Causse, Jorge R. Civil law. Royal
Rights, Editorial Astrea, Buenos Aires 2004, 2 updated and expanded edition, pg. 315.
Cornejo, Américo Atilio. Property Law Course. Party General Ed Virtues, Editorial Universitaria,
Salta 2005, pg. 82
13 Section 2692 of the Civil Code.
14 Section 2694 of the Civil Code and Article 51 of Law 14,394. Doctrine
6 7 8 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL Dad in trust to the trustees under the condition of suspending
division during that period, by applying Article 2694 to the transmission
made under "the degree of confidence." Questioned
as the effects of the division of the condominium,
following the proposed working hypothesis, we should adjust to the rules laid down by
Encoder and affirm its declaratory nature. There
Article 2695 Civil Code, the division of the condominium is
only declarative in the sense that each co-trustees shall be considered
the sole owner since the beginning of the undivided, as if the condominium trust
never existed. This solution poses insurmountable
as to the generation of many trusts as
appointed co-trustees, as there is another interpretation that corresponds
against the original acquisition of each tenant of what he has corresponded
on your lot. The same effect
assigned by Article 2696 of the Civil Code to the division of
condominium, for which one of the co-trustees
devine the sole owner of the commonplace.
III.1.2.2. Powers of the undivided co-trustees of their parties and the common thing
The Article 2676 establishes that: each owner has, on their
undivided share in the rights attaching to the property and may exercise
without the consent of the demás15. Thus, a co-trustees may
tax and have their undivided, without the consent of the other
trust.
Moreover, note that, to manage, encumber and dispose of the
common thing, you must have the consent of all the tenants
-by rule of Article 2680 Civil Code, without prejudice to Article
2683 of that body, and, in return, the opposition
one of the co-trustees sufficient to prevent do
resolved by the majority.
Finally, we believe that while it would be possible to co-trustees
escape the obligation to pay maintenance or repair costs
of the commonplace, by abandono16, this work demonstrate the incum-VIDAL
15 MARIANI, Marina. Property Law Course, Ed Victor Zavalía, Buenos Aires 1976,
Volume II, pg. 26 to 50.
16 Article 2685 Civil Code in fine. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 7 9
demand compliance or contained in Article 6 of Law No. 24,441 and must
be considered as grounds for removal.
III.1.2.3. Or condominium ownership trust: the need for legislative reform
our view, the problems outlined, we are obliged to discourage transmission
fiduciary property or property in joint ownership or condominium
and promoting legislative reform for its final decision
expresa17 ban.
Note that if the foundation of trust
or condominium ownership is based on joining forces in an interdisciplinary or the
trust to carry out the complex tasks that can be at your
office in carrying out the assignment of confidence
currently could be used to clothing personality legal, permitted by law 24,441. Nevertheless
and considered appropriate by the legislature, we believe that receiving
co-ownership or condominium
trust under other rules other than those mentioned, can only be considered creating a new category
manorial estate or self-involvement,
anti-personnel and structural design real-existing law, providing an express
regulation providing for the undivided co-ownership
forced by the term of the fideicomiso18.
III.1.3. The domain trust and the real right of usufruct
Article 2841 Civil Code prohibits the trustee be real
usufruct right over the things that make up the trust property. 24,441
law repealed the provision has not commented,
situation should be considered in a future legislative reform, it does not currently exist
arguments justifying their livelihood.
believe that the powers of the trustee as owner of a real
imperfecto19 domain, comparable to the holder of a revocable,
include the establishment of usufruct on the property fideicomiti-
17 The receipt of the condominium ownership or trust, under other rules other than those mentioned
can only be considered creating a new category or equity dominial
involvement of independent, anti-personal and structural design of real-existing regulations.
18 Comparable to the creation of a new system of the national law of condominiums,
repealed article 18 of its sole purpose the Civil Code Article 2693. 19 The Trust
domain participates in the absolute nature of eminent domain.
is only limited by the order of confidence and have a time limit, not to undermine
reach such a conclusion. Doctrine
6 8 0 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL two, in compliance with the intended purpose of the contract or trust
probate.
Finally, and as the prevailing regulatory regime,
provisions of that art. 2841 should not be considered extended
transfer to the trustee of the real right of usufruct on a
thing would correspond to the settlor.
In our view, is fully valid
trust agreement that provides for the transmission of the right real
usufruct of which is owned by the settlor of a building, to the effect that
productively be administered by the trustee, the designated beneficiary of income or rents
obtained at the same settlor.
III.1.4. Onerous or gratuitous trust vs. transfer for of
trust property or trust domain
The trust agreement can be costly or free
as the work of the trustee is paid or fully, without getting any in return
provision. Article 8 of Law No. 24,441, it boasts a consideration, unless otherwise
. Therefore, if the trustee shall act freely, without
receive consideration, it is up to the notary giving
warn of the need to be acknowledged that fact in
trust agreement or will.
Instead, we agree with the majority doctrine
warning that the transfer of ownership of property or dominion of a thing in trust,
the settlor to the trustee, can not be scheduled preliminary
onerous or gratuitous because the real title of the acquisition
causal dominial is "trust."
III.2. The trust agreement and the stamp tax in the area of \u200b\u200b
the province of Buenos Aires
For the formalization of the trust only the
shall pay the stamp tax when it has expressly provided that the trustee
not receive remuneration for work assigned.
As we stated, the law presumes the contract onerous
so that, unless otherwise agreed, the total remuneration of the trustee or determinable
will be the tax base on the
we will apply a portion of 1%.
20 In this sense, the Revenue Department has been answered in their opinions:
Report 72/95, Report 98/96. Report 7 / 97, Report 10/97, 58/97 and cc Report. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 8 1
III.3. Transmission in trust and the stamp tax in the area of \u200b\u200b
the province of Buenos Aires
The Provincial Revenue of the Province of Buenos Aires
not levied on the transmission of settlor trust to the trustee, on criteria that adhere to
fully, based on the lack of onerous "title
of confidence "that serves causa20.
IV. THE PARTIES TO THE AGREEMENT OF TRUST
Under article 1 of Law No. 24,441, the trust agreement is
perfect with the agreement of the wills of only two parts:
a) the trustee, must transfer the title of trust of
specific assets, and
b) the trustee, compelled to exercise fiduciary property
Heritage Trust, on behalf of the beneficiaries designated in the contract
and transmit it to the trustees elected to the fulfillment of
term or condition.
In our view, people of the beneficiaries or fideicomisarios21,
but should be determined or be determinable under the contract referred
budgets are not parties to the contract
trust. Note that article 2 of Law No. 24,441 establishes
that given the lack of acceptance or death of beneficiaries,
means the trustees and beneficiaries, in the absence of
latter, the trustee itself.
Also, people of the beneficiaries or trustees do not necessarily
must exist or be present at the time of conclusion of the contract
.
therefore not be considered the trust agreement as a contract
plurilateral, but bilateral.
IV.1. Irrelevance of "trust unilateral contract "
24,441 law does not expressly prohibit the establishment of the so-called
unilateral22 trust, which is understood as one in which people agree
the settlor and the trustee.
21 On the figure of the trustee, Bagley, Sebastian J. Application and problems of trust
contract, La Ley, 1996-A, pág.1267.
22 In our view, the phrase "unilateral trust" could refer either to the trust warned
probate as a unilateral legal act, and in its design contract on the Doctrine
6 8 2 / 2 0 0 7 / REVISTANOTARIAL 9 5 7
Thus, the National Securities Commission resolution general
271/9523 provided for the possibility of setting up trusts for unilateral financial
public offering.
That decision was seriously challenged by the doctrine mayoritaria24,
which fully support, causing it derogación25.
As stated in the previous title, do not harbor any doubt in terms
unilateral trust that has no place in the
legal force, since the requirement for the transfer in trust of
specific assets, the settlor to the trustee, requires the existence of two distinct
.
customs posts to it the proviso in Article 2509 of the Civil Code, whereby the holder of the domain
full of one thing for a title, can not hereafter acquire
other.
conclude, then, would not be viable in our system of legal
a trust agreement in which the trustee decides
affect part of its assets to fulfill a specific purpose,
becoming trustee of the property to integrate this heritage.
should, the Notary, to qualify such a situation, discouraging its conclusion
and warning of the invalidity of the contract in that position
merit of which it was implemented fiduciary transfer.
IV.2. Trustee-beneficiary. Trustee fiduciary
While first-Law No. 24,441, contains no provision expressly prohibiting
the trustee be a beneficiary or trustee of the trust assets,
Article 7 prohibits the trustee to acquire for himself the goods or things
up the assets of involvement.
If we consider that the rights of beneficiaries in trust
be specified by the receipt of those supplies,
is reasonable to the apparent conflict between the trustee and those
. Notary
De found a trust in which it is intended that the person
the Trust matches the
benefifideicomiso any of the obligations established only head of a party, of course unacceptable
in our legislation. Currently
23 repealed. 24 See LISOPRAWSKI
Silvio Victor. "The invalidity of unilateral trust and
autoafectación of assets in the trust." La Ley, 1998-D, pg. 1366 to 1372.
25 Without prejudice to the survival residual trusts created under the regime of general
resolution until the expiration of the time duration for which they were approved, provided by Resolution
General of the National Securities Commission 296/97 .
Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 8 3
beneficiaries or trustees, believe that there should be no doubt of the invalidity of that provision
contractual or testamentary nor the
validity of the remaining provisions to the extent that
not violate the prohibition in Article 7 26.
IV.2.1. The remuneration of the trustee and art. 7 of Law No. 24,441
As I said in the previous title, if the trust agreement
or testamentary trust envisaged that the work of the Trust
be paid, the interpretation of Article 7 of Law No. 24,441, we require
to infer the nullity of the stipulation or
provision that compensation is satisfied with the goods or things that make up the trust property
.
understand the intended purpose of the said Article 7
as intended to avoid the collision between personal interests and individual trust
must be imposed in fulfilling the trust.
Notwithstanding this, the practice having fiduciary
during the years since the enactment of the law determines the need for legislative reform
allow the trustee to collect his salary of goods
fideicomitidos27.
The new legal standard should be complemented with the requirement that both the obligation
of remuneration and the manner of compliance
are intentionally set, or can be determined, in accordance with the procedures
precisely designed in
trust agreement or act of last will.
IV.3. The trust agreement between spouses
not exist in our Civil Code a general prohibition of hiring
between spouses, but such impairment has been established to
some contracts in particular, because of the matrimonial property regime
force. We
26 by a trust case in which the trustee has been appointed beneficiary A
together with B and C. The benefits established in favor of A is zero not those made in favor of B and C.
important thing to note is that invalidity shall not affect the contract itself but only the clause that waives
gain trust the trust property for themselves.
27 Today, there are many trust agreements in which the figure of the trust is transferred
less qualified people to fulfill the assignment of confidence entrusted by the
prohibition in Article 7 and their influence on the remuneration of the trustee. Take for example the trust
contract whereby the owner of land transfers in trust. Doctrine
6 8 4 / 2 0 0 7 / REVISTANOTA RIAL 9 5 7
to the contract of sale, this mission has been accomplished by the
Article 1358 of the Civil Code, which requires
can not take place between husband and wife. On the donation is Article 1807, paragraph
1 that determines who can not be held by one spouse to the other
please, for the duration of the marriage. Consequently there
contracts that spouses can celebrate
as bail, the mandate or contract which has the aim to
constitution of a corporation, provided that it is a limited liability company
or a corporation. All possible
under no regime change disposal and management
own marital property provisions of section 1276 and Civil Code
consistent and
separate responsibilities under the mass of property of each spouse. 24,441
law contains no express provision that provides for the situation. Given the legal default
we wonder about the validity of the contract concluded between spouses
trust.
We have referred above to the trust agreement
is free of charge or under the trustee to obtain or
remuneration for his work as such. For its part, the transmission is neither trust
onerous or gratuitous, but rather based on the title confidence.
not hesitate to say that both cases can not be included
in some of the specific prohibitions in the law typified background
therefore not only be valid trust agreement
held in which one spouse is a party trustee and another part trust, but also the transmission
to verify trust in compliance with
it.
the contrary, by rule of paragraph 1 of article 1807 and article 1358 of Civil Code
is invalid the trust agreement in which the settlor
is one of the spouses and one spouse is the designated beneficiary or trustee of
trust assets.
V. GRATUITY PAYMENT OR FINAL BUSINESS
To assess the degree of generosity involved in the final business
by the trust agreement seeks to implement, fully
should be a comparative analysis of the amounts transferred in trust by the settlor
favor of the trustee regarding property rights
concluded for the second, either in his capacity as beneficiary
and / or fideicomisario28. This evaluation should be planned
temporarily at the time of termination of the trust. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 8 5
Note that the statement does not contradict the title character of causal Trusted
preliminarily attributed to the acquisition dominial fiduciary
verified as to time, such acquisition can not be regarded as onerous or gratuitous
.
V.1. The trust and the legitimate heir to the death
the settlor
Law 24,441, Article 3, establishes the possibility that the
trust can be established by will, provided it is
issued pursuant to any of the forms provided for them in the Civil Code
.
For its part, Article 4, subsection c) of that body of law, provides that
the term of the trust established by contract or
-track Probate-extend to 30 years after its establishment
or death or disability of the beneficiary cease
unable, if they occur after maturity.
Given the aforementioned legislation, one wonders about the effectiveness
of the trust agreements in effect at the time of death
the settlor and the trust testamentarios29, when any of them
violate the legitimate heirs of the settlor;
course consider extended to the trust established in
benefit of an incompetent. We
eg the trust established by the parent-settlors
for a child unable to (beneficiary) in order to protect him and ensure their maintenance
lifetime.
No doubt the protective nature of Article 4, subsection c) and utility
states that its implementation would entail, but warned
to admit the possibility of raising the trust thus constituted the remaining
heirs (brothers of the ward) over the legitimate
their part, would subtract from the trust estate imperante30
public.
28 In case the indirect business may be a settlor's bounty, in some cases be considered liable
donation, if the trustee of the trust property remaining
outside third party.
29 On the issue of testamentary trust in particular. Lambert, Reuben Augustus.
"Comments and implementation of Law No. 24,441 of funding for housing and construction", 1995, p.
. 9. Lloveras, Nora. "Testamentary trust. "The will you have?" Court Argentina,
1999-III, pág.1059 to 1061. 30 See IÑIGO
, Delia B. "Trust and legitimate" Jurisprudence Argentina, 2001-IV, pg. 925 et seq.
Azpiri, Jorge Osvaldo; Requeijo, Oscar. "The trust and succession law", La Ley, 1995-D, pg. 1127. Doctrine
6 8 6 / 2 0 0 7 / REVISTANOTARIAL 9 5 7
response, we would argue that the law provides an exception
24,441 legal rigidity sucesorias31 standards and, in these cases, the heirs
lack of any action to demand that they return to the body
estate or trust assets equal to its value. To our pesar32
and attention to the order prevailing in
público33 matter of succession, not adhere to that position.
In our view, the trust governed by Law No. 24,441
is not exempt from the application of inheritance law Civil34 regulated in the Code.
Therefore, at the time of conclusion of the trust or
if the drafting of the testamentary trust, it is up to advise the trustee
Notary on the possible implications of their demonstrations against actions
their heirs are entitled to implore
against them and defend their rights
hereditary legally recognized.
As a result of the above, when studying the
manorial records involving the transfer of a domain trust
the Notary must verify whether the provisions contained in the contract
or living trust can be understood in violation
to hereditaria35 legitimate. Baca
Martínez, Eloisa; Gonzalia, Maria Victoria. "Testamentary trust under Argentine law," JOURNAL OF ATTORNEY
No. 950, pg. 158 et seq.
31 See FERRER, Francisco AM testamentary trust and the flexibility of inheritance law,
Court Argentina, 1999-III, pg. 1038 et seq. View
trusts in a case before the Italian courts and the conclusions of the author
Kemelmajer de Carlucci, Aida. "The trust and self in some judicial decisions, Court
Argentina, 1999-III, pg. 1053 et seq.
ORELLE, José María. "Trust in the system guarantee the Civil Code and the law 24 441 "
National Academy of Notaries, XXXVI Theoretical and Practical Seminar" Laureano Arturo Moreira, 5 and
November 6, 1998, pg. 58.
32 In the opinion of the author of this paper, the current regime of self
inherited should be subject to future legislative reform implementation provides an additional way, to
the absence of the assignee otherwise.
33 With regard to public view on theory of absorption Lavalle Cobo, Jorge E.; Aira, Veronica Andrea
. Indirect Business Law, Law Volume 2006-F, pg. 955. 34
Court of Appeals in Civil Division, Room F, 03/11/2005. "Vogelius, Angelina T. and other c.
Vogelius, Frederick and other "with a note of Azpiri, Jorge O. "The trust and budgets
actions collation and reduction", La Ley, 2006-B, pg. 469. 35 Especially
even when part of the prevailing doctrine advocates the true nature of the
action mentioned in Article 3955 Civil Code without exception and certain local agencies
courts have endorsed such a stance with his pronouncements.
Ceravolo, Angel Francisco. "Donations titles futile and observable.
a necessary and urgent reform. " Law 2006-B, pg. 673.
Court of Appeals in Civil, Sala M, 12/05/1998, "Yebra, Patricia E. c / Gasparini of
Roca, Marta E. and other s / reduction action. " Di Lella, Peter. "Reduction of the Grant
forced heir (or how the donation is always imperfect domain title)," Court Argentina,
1995 IV, pg. 687. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 8 7
VI. The so-called Guarantee Trust "CHARACTERIZATION
Any trust pursues a warranty from the time
involvement involving the ownership of the settlor
the execution of a particular business or act, ensuring
creditors fiduciary in the performance of their duties, the debts due,
by separate assets established for that purpose.
On this premise, the collateral trust agreement is individualized
as one whose main purpose is to ensure all types of obligations
directly by the settlor in his personal capacity or by a tercero36
.
say "principal purpose" because nothing prevents a guarantee
trust, the trustee's commission consists of not only conducting
of goods at the failure of the debtor-trustor, but also
in the administration of separate fund for their benefit while
verify compliance with the obligation garantizada37.
In summary, the collateral trust agreement is one for which the party
trust transfers trust property in goods and / or
certain things they own, in favor of the trustee, with the
purpose of ensuring compliance one or more obligations of the settlor
own or a third party-whether prior to, simultaneous
and / or pending the conclusion of the trust, so that in case of breach of duty
guaranteed the trust necessary to
liquidation of the trust assets to meet the credit
the creditworthiness of the obligations unfulfilled
designated as beneficiary in the trust agreement, transferring the remainder,
to exist, the trustee, under the character of trustee, or his successors
those found .
VI.1. The legality of the trust as collateral
Failure of Law No. 24,441 of the trust expressly nominate
warranty as a subspecies of the trust, just as occupied-
36 By this type of trust is not only possible but ensure personal debts
also those of a third party like what happened with the mortgage.
37 See Orman, Carolina. The use of the trust agreement for purposes of security, ATTORNEY JOURNAL
No. 936, pg. 459.
in the same sense. Orman, Carolina; Clusellas, Eduardo G. The trust as a form of guarantee
, XVI International Congress Registration Law, Fortaleza, Brazil 2005. Doctrine
6 8 8 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL rre with other variants are not regulated, it is inconsistent to play down their possible legitimacy
constitution.
In our view, the absence of express prohibition
characterization of the essential rules of the trust are sufficient to enable its implementation
. Holding Escrow
warranty, under the autonomy of the will that preaches
Article 1197 of the Civil Code, and the preservation
all rights accorded to the trustor through the actions
the legal order itself authorizes it to exercise, dismisses the argument,
also held, the violation of their right of defense in juicio38.
Moreover, the trust no matter warranty
prima facie conclusion of a simulated act, since the intended purpose of the
contract is to guarantee obligations arising from certain and enforceable.
is clear that the trust agreement is not exempt from the action of
simulation but for that it be appropriate, should meet
the necessary budgets to provide for simulated the contract.
Finally, we believe that without prejudice to the general actions
under the law that may be filed against the trust agreement
as bilateral legal act, and Empire
article 15 of Law 24,441, the illegality of the contract may be declared
is found that both the recruitment of trust took place in
fraud to the creditors of the settlor.
VI.2. Personal nature of the security
The trust agreement may be held to guarantee all such obligations
to strengthen the right of the creditor to obtain effective
perception of their credit.
The intended purpose of such trusts do not denature
Trust property transmitted, for the operation of the guarantee
function which defines the trust is held in the integration of a special fund
with the property that the settlor to transfer Trust
whose status protects them from the actions of others. 38 In contrast
: PERALTA MARISCAL, L. Leopold "Guarantee Trust? Neuralgia and headaches
Guaranteed!, La Ley, 2000-D, pg. PERALTA
975-987 MARISCAL, L. Leopold "Trust yes, no warranty ", La Ley, 2001-B, pg. 979-983. PERALTA
MARISCAL, L. Leopold "Economic Analysis of the guarantee trust. Further reflections on its illegality
", La Ley, 2001-E, pg. 1027-1031.
MORELLI, Esteban Santiago Vidal García, Vanina. "The trust collateral is not the solution", XXV
Argentinas Notary Seminar, August 2000, Publication of Colegio Notarial de Mendoza, pg. 329.
In the same vein: Vázquez, Gabriela A. "The guarantee trust: certainties and hesitations", La Ley 2006 -
A, pg. 1179-1181. Doctrine
2 0 0 7 / Magazines OTARIAL 9 5 7 / 6 8 9
By the trust agreement does not create a new property right
guarantee to the creditor-beneficiary.
In case of breach of the secured obligations, the trustee liquidated the trust assets
following
obligations assumed under the trust agreement and because of the intended purpose. For
this, the creditor has a secured claim only
personal action against the trustee for breach of order encomendado39.
VI.3. The trust agreement and open mortgages: cause and source of the obligation
ensuring
The mortgage credit guarantee undetermined set the assumption
open mortgage itself, because from the
act of incorporation is affected, at least, one of his characters
essential, in our view, the incidental nature.
to defend the validity of mortgages open on our right,
has held that art. 3153 Civil Code expressly permits
mortgage guarantee with contingent liabilities.
This is considered the potential liability for future or no
the time of creation of the mortgage and support the principle of accessoriness
-or specialty-is fulfilled: a) determining the amount of the amount
ensuring, b)
description of any possible legal operations, held by the debtor to the creditor
to serve as the cause of the guaranteed obligations and c) an indication of a deadline
which would take place on any business.
not adhere to our doctrinal approach to this position.
In our opinion, it confuses the possibility of guaranteeing mortgage-
a contingent liability to the contract regardless
or cause and source of the obligation exists in
opportunity to become the mortgage.
accordance with the provisions of the second paragraph of art.
3131 the Civil Code and Art. 3128, last part of that same Code
mortgage can be an accessory to a contract, which acts as a source of obligations garantizadas40
. Both provisions are of general application, even for cases
contingent claims.
39 On the personal nature of the guarantee, see: ITURBIDE, Gabriela A.
reflections on the nature of the right of the creditor in the security Custodial, La Ley 2005-A, pág.1328 et seq.
40 On the differences between the mortgage and the trust, see ITURBIDE, Gabriela A. Similarities and differences
trust in relation to the rights of eligible collateral in our legislation, the Act
2005-A, pg. 964. Doctrine
6 9 0 / 2 0 0 7 / 9 5 7 REVISTANOTARIAL
The obligation may be possible but inexorably
the time of the creation of the mortgage, the contract must be source or cause, of which that may be incurred
and whose identification should
record in the constituent.
hold these demands not be met when
held a collateral trust agreement, as the real right
Trust Domain to be transferred do not share the principles or
features from the mortgage.
Therefore, a trust agreement will guarantee all obligations
-to give, do, do, pure or modal-
incurred by the trustee regardless of the date of the cause and source of these obligations, which may be
previous, concomitant or future in relation to
time of conclusion of the trust, without which this situation may result from
nullity of the contract.
Thus, it is valid to a trust agreement entered into by
a trustee to secure all obligations and loans contracted or
you may incur in the future with a third party (in case we
supply contract or supply) if
knowledge or determination of the obligations would become of the assessment or analysis
the provisions contained in the indenture.
VI.4. The creditor's secured claim as part of the contract fiduciary trust as security
As we said, 24,441 law does not expressly prohibit the creditor
of the obligation is secured by a trust agreement
warranty may coincide with the Trust that contract. Notwithstanding
merit and affirmed the provisions of Article 7 of
the Act, regarding the prohibition of the trustee to acquire for themselves
trust property and failure to exempt the trust accounts to pay the beneficiary
conclude the law does not admit the possibility of
the creditor-beneficiary and the trustee are gathered in a
same person.
In contrast, some doctrina41 and jurisprudence have admitted that posibilidad42.
Notwithstanding the foregoing, we believe it would be desirable to avoid
41 See: ARANCIBIA, Fernanda Alejandra; Galmarini, Gonzalo; Nurit Jamui, Liliana; Yael Kaus, Laura;
Lozano, Romina; Dodda Martínez, Natalia. Guarantee Trust, ATTORNEY REVIEW No. 935, pg.
63-64. Casas, René Charles and Ciuro Castello, Norma E. Guarantee Trust, XXV Conference Notary
Argentinas, August 2000, published by the Colegio Notarial de Mendoza, pg. 288. Sandeel, Patricia
Adriana. Guarantee Trust, Argentinas Notary Seminar XXV, August 2000, publication
the Mendoza College of Notaries, pg. 318.
42 Superior Court of Justice of Santiago del Estero, Civil and Commercial Chamber, 17/11/2005, "Maud,
Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 9 1
referenced ambivalence in the conclusion of the contract and place in a third
officiate trustee compliance order or purpose of the covenant of trust
.
VII. TRANSFER regarding ownership of the settlor PROPERTY TRUST TO
: Raising
transmission of things or property owned by the settlor to the trustee under the
"title of trust ", will be a meeting once head of the trustee
title and so the law requires to provide for the transfer
dominial43 verified.
transfers occurred to merit a contract previously held
trust must be implemented by public
writing and granted by the settlor and trustee, whether in a single act of
notarial deed or by separate.
For the purposes of proving the nature alleged by the trustee, the Notary
should keep an eye on the original trust agreement, which require a close reading
the purpose of evaluating the merits of the
transmission and the existence of a contractual provision whereby
be imposed on the trustee's obligation to provide
agreement with the trustee to dispose of or encumber things or trust assets.
latter provision should be included in the drafting of the deed of transfer,
not only for the convenience of advertising
certificated the limitation imposed but also, as we shall see, to request your registration by the Land Registry
in real property folio.
to its conclusion must be provided to the domain and
certificates issued by the Registry inhibitions of Real Estate that matches
the location of the property and report the status of the thing
and fiduciante44 person. Also, the notary must fill
respective administrative certificates require 45 and Elijah
perception "LLNOA 2006 (April), 273: A trust in security even match the trustee with the principal beneficiary
is lawful as long as it has conceived in a prudent and
have been determined in a clear and precise procedures to follow in case of default by the settlor
and destination of any outstanding balances that may be settled and satisfied after the credit
not prevent the matter being the ban the trustee to purchase trust property for themselves
Art. 7 of Law No. 24,441. "
43 Articles 2601, 2602 and 2603 Civil Code.
44 Article 23 of Law 17,801.
45 In the area of \u200b\u200bthe province of Buenos Aires, pre-service processing of "cadastral certificate,
must be complied with the provisions of Law 10,707, in appropriate cases. Doctrine
6 9 2 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL of sums of money required to settle obligations under the Codes
tax imposed for any transfer tax dominial.
Moreover and in order to comply with Resolution
General number 34846 of the Federal Administration of Public Revenue, the trustee shall deliver to
Notary constancy of the unique key assigned to
fideicomiso47 Tax ID, which the clerk shall retain
attached to its protocol.
VII.1. The assent of the art. 1277 of Civil Code and the transfer in trust
On the occasion of the transfer in trust of real estate, personal property rights
or acquisitions, for which registration laws have imposed a mandatory
, by the settlor to the trustee, the
have imposed with the consent of the fiduciante49 cónyuge48.
same requirement must be fulfilled: a) for the duration of marriage,
if the purpose of transfer was a trust the settlor
own property it is located in the matrimonial home if she had children
minor or incompetent, and b) even after the dissolution of the conjugal partnership;
is the property itself or Dower.
In the study of manorial records, the Notary must qualify
compliance with the legal demand, given the relative invalidity or unenforceability
operated transmission, missed it the nod.
VII.2.
Registration Under Article 2505 of Civil Code and Law 17,801, writing broadcast
under analysis, given and approved, must be registered with the Registry
by the respective property for the purposes of its enforceability
to third parties.
regard, the Technical Arrangements
registration issued by the Registry of Property of the city and the province of Buenos Aires, facción50
are similar. 46
Gazette January 27, 1999.
47 The trust, though not the subject of law for the basic legislation, it is for the tax, so
not be enough to have the record ID, or CDI CUIL Trust staff.
48 We refer to the disposing spouse. 49 See
TAIANA of BRANDI and Llorens, Luis R. "The trust and legal relationship ", La Ley,
1996-A, pg. 1423. 50
Property Registry of the Province of Buenos Aires: DTR 17/95.
Land Registry Property of the City of Buenos Aires: DTR 4 / 95. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 9 3
For them, registration entry states that the transmission will be entered in the item title
and should begin with the words: "TRUST ESTATE
" (Law 24 441) expressing the data below
identity of the trustee and those that are practical in terms of legal business.
extol the importance of differentiation the registration entry with the legend referred
. In this way fails to distinguish the domain registration
trustee of the registration of freehold. This difference
recover more relevant to the request for registration of
court-ordered injunction at the request of the creditors of the Trust
carrying out the assignment.
Furthermore, with the assumption that the trust agreement has
expected to require the agreement of the trustee when the trustee
want to dispose of or encumber the assets transferred to it fideciomitidos in
trust, the notary must be present Praying
his reason for making the Registry in the seat of ownership, as it involves the aforementioned registration
Technical Provisions.
latter registration record with the addition that the domain is
subject to a term or condition (unnecessary by the imperfect nature
said trust domain) are well received, as provided
advertising the terms of the trust agreement.
VII.3. The tax on transfer of property and income tax
Due to the lack of onerous TRANSMISSION in the trust, not for
taxing such transfers mentioned taxes.
However, the Federal Administration of Public Revenue rescues
that the provisions contained in Article 1139 Civil Code, contracts are
for consideration "... when seeking benefits to one or another of the
parties are not granted an allowance but she has done,
or agree to do ...", in that they are free of charge "... when
secured to either party an advantage, regardless of
all his supply. "
In this regard, notes that when the settlor transfers the domain
a plot of land for the construction of a building and later awarded the contract
certain units, is counterbalanced by a consideration
future to which requires the fiduciary, which emerges clearly
of the trust agreement, which details the assets that correspond to award
upon completion of the work.
This was the interpretation given in the opinion 55/2005 of the Technical Advisory
Tax Federal Revenue Administration Doctrine
6 9 4 / 2 0 0 7 / 9 5 7 REVISTANOTARIAL Public
it resolved: "that the transfer domain by the settlor
under the contract in question has the character of consideration, thus resulting
reached by the Tax Transfer
Properties of Natural Persons and Estates Undivided. "
With blunder, the above attempts to reveal the" principle
economic reality "that governs the tax law.
The drawback we noticed is the framework of legal uncertainty
that such conflicting opinions gives the tax treatment of trust
. Assume a query written by each trust to try to formalize
, given the uncertainty of the criterion of the taxing authority, not a suggestion
acceptable.
must be remembered that the collection of tax by collector
body at the time of transfer
trust the source of difficulty to quantify its tax base. It hardly seems fair
that the rate of one or other tax, as applicable, must be paid on the valuation of the property tax
being transferred, when the real onerous business
may look outdated or decreased in value. Nor is it viable
requiring the allocation of values, the
complexity of the task and the final differences between the estimated and
really happened.
In response to the economic reality of the business end, should be deferred
the collection of taxes on the transfer of property or income tax
when the "award burdensome" to the trustor
functional units built.
This solution would avoid the double taxation that could suffer the settlor would define
and corresponding tax actually paid.
Note that based on the rules of the 55/05 opinion at the time of the transfer in trust
lot by a "settlor" natural person "
the trustee, the transaction would be taxed on the transfer of
goods, whereas if one takes into account the "onerous"
the award of the units built would only pay the tax
ganancias51.
do not intend to pretend to solve
a problem outside our specialty. We trust that the professionals in charge of the matter
find a way to ensure
simplicity in the tax treatment of trust, many of the first 51
transfer unit affected by the provisions of Law 13,512. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 9 5
sometimes causes frustration of the implementation of the legal form in
against the interests of society to which Law No. 24,441 has been
intended.
VIII. TRANSFER OF PROPERTY manorial
TRUSTED VERIFIED BY THE TRUST. REVENUES.
These transfers must comply with the precautions
outlined in Title VI of this work. In particular, a detailed review of contract
trust to qualify their validity, the legitimacy of the actions of fiduciario52
and enforceability of the agreement of the trustee for disposition
act intended.
VIII.1. The assent of the art. 1277 of Civil Code and the trustee transfers
on
trust property is not covered by Article 1277 of the transfer or creation of liens
on the trustee trust property check in
the terms of Article 17 of Law 24,441.
In these cases, the legal professional should take notice No requirement on
to comply with the legal requirement, because the
set up things and trust assets separate assets
trustee's personal assets, preventing the characterization of himself as Dower
or acquired under the title of fiduciary .
VIII.2. Article 17 and the need for conformity of the settlor
Subject absolute right
imperfect real domain which is owned by the trustee, said that Article 17 of Law No. 24,441
recognizes the settlor's power to require its prior
pursuant to the disposition or encumbrance of the trust assets if they had expressly agreed
.
If nothing had been provided, the trustee may dispose of and encumber real
integrating the separate assets when required
purposes of the trust. As
52, where transmission is not well strange to the request for the purpose of the trust
. Doctrine
6 9 6 / 2 0 0 7 / 9 5 7
REVISTANOTARIAL But how must the transmission operated dominial
where compliance is omitted the settlor?
understand that the lack of conformity required
not cause the invalidity of the transfer, but only its unenforceability against
fiduciante53 who may choose to: a) claim payment of the fine provided for non-compliance
b) full reparation for the damages caused
, if the trustee pursuant to mediate them had avoided sidos
c) revoke the trust, if he had booked this
faculty, and d) request the removal of fiduciario54 court.
On the other hand, could well be the case that the settlor
refuses to give its assent to the transfer of trust when it
required by the end of the trust. In these cases, we believe that the preferred solution
must be in obtaining a judicial authorization
extra.
VIII.3. Registration Under the
prescribed by the technical provisions identified above
registration, property records of the City and Buenos Aires Province
can see
notarial documents submitted for registration in which compliance has been omitted
the settlor, as provided by Article 17 of Law 24,441. In these cases
proceed with its provisional registration of the document and return to the notary
for correction.
Note that the power rating of the recorder depends on the prior decision
reason for limiting the registration records of the manorial
ownership trust.
The considerations do not prevent
warn of the inappropriateness of the power rating on these matters registry, which only
should be limited to extrinsic forms of the act.
VIII.4. Income tax payment
correspond only in cases in which the title transfer
causal dominial consideration can be cataloged.
53 However, should assess the "good faith" purchaser's due diligence, "which should not be presumed
when aware of the imposition of the contract by the appropriate reading
trust agreement does not preclude the completion of the transfer in terms of the offense.
54 In contrast, asserts the invalidity of the transfer, TRANCHINI DI MARCO, Marco H.
Trust: The contract, property and the trust domain, ATTORNEY REVIEW No. 929, p.
. 95. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 9 7
transmissions prosecuted in the normal
trust to the beneficiary or on behalf of the trustee extinction
are taxed to the extent that there is a consideration of the acquiring party.
IX. Manorial ACQUISITION OF PROPERTY BY THE TRUST FUND TO
trust. COLLECTION
The trust agreement should provide for the manner in which other goods are
incorporated into the patrimony of affectation.
One variant which is achieved through the incorporation of heritage buildings
purchase separately is that the trustee make
of them with the fruits of the trust property or the proceeds of disposition
acts on mismos55.
These cases of "real subrogation" which should be left
recorded in the act of acquisition, having the registration of real estate property
take note of that fact. You'll need a notary-in
the heading of observations of the minutes of registration, specifying the nature of trust
acquiring, referencing the contract de fideicomiso y el origen
de los fondos o bienes fideicomitidos involucrados en la adquisición.
X. LA SUSTITUCIÓN DEL FIDUCIARIO Y LA TRANSMISIÓN DEL PATRIMONIO
FIDEICOMITIDO.
De acuerdo al artículo 4 de la ley 24.441, el fideicomiso contractual y
el testamentario deberán prever el modo de sustitución del fiduciario en
caso de cese.
Las causales de cesación del fiduciario están enumeradas de manera
enunciativa en el artículo 9 de ese cuerpo legal, el que dispone: “El fiduciario
cesará como tal por:
a) Remoción judicial por incumplimiento de sus obligaciones, a instancia
del fiduciante; o a pedido del beneficiario con citación del fiduciante;
b) Por muerte o incapacidad judicialmente declarada si fuera una persona
física
c) Por disolución si fuere una persona jurídica
d) Por quiebra o liquidación
e) Por renuncia si en el contrato se hubiese autorizado expresamente
esta causa. La renuncia tendrá efecto después de la transferencia del patrimonio
objeto del fideicomiso al fiduciario sustituto.”
55 Art. 13 de la ley 24.441.
Doctrina
6 9 8 / 2 0 0 7 / R E V I S T A N O T A R I A L 9 5 7
Ante cualquiera de estos supuestos, el fiduciario debe ser reemplazado
primeramente por el sustituto designado en el contrato. Si éste no aceptare
la designación o estuviere absent, the judge shall appoint as such
to one company specifically authorized by the National Securities Commission
to act as trustees.
This solution should be avoided. Note that Article 4 does not require the express
the person of trust, so suffice
setting a specific procedure for election, which
could include, among others, the majority agreement between the settlor and beneficiaries or
beneficiaries and trustees.
The main problem of the cessation of trust lies in the way
's replacement will happen in relation to trust property.
On the occasion to rule on the legal nature of trust
domain, we have denied the existence of a new category dominial,
so that the transmission of the trust assets will be governed in
the title, and recording mode in accordance with Civil Code . For its part, the relevance
the trust property, would apply the rules
the transfer of credits.
Notwithstanding the foregoing, we agree with Kiper and
LISOPRAWSKI56 to recognize some exceptions to the rule. Where
requested removal before the court will
sufficient to operate the transmission assets separate
add the title to the act tradit been in the witness: a) the judicial decision that has
and appoint a substitute, after filling out a report
inhibitions by the person of trust, and b) the act of acceptance
designation in the case. Similar
solution corresponds
legally declared inability of the trustee. The title in these cases be integrated
diligence prior inhibitions report, the witness: a) the court decision declaring the inability
b) the order to appoint the guardian; c) acceptance of the position of tutor
and d) the car of your insight. Join Thus, the contract
and trust deed by which the substitute
accept your nomination. The act tradit will be fulfilled by the tutor.
When the closure of the trustee is the product of his death is unacceptable
assume the opening of probate to the heirs
need to verify the transmission of the trust assets in favor of the substitute
(note that nothing they inherit) . This is a very personal right
thereafter no cause of death. Therefore, sufficient
56 Kiper, Claudio M. and Lisoprawski, Silvio V. Treaty of trust, Ed Lexis Nexis Depalma, Buenos Aires
2003, pg. 107-118. Doctrine
2 0 0 7 / REVISTANOTARIAL 9 5 7 / 6 9 9
with the substitute get the death certificate of substituted
documentary integrating the trust agreement or living trust
and acceptance of appointment by deed.
XI. REGISTRATION OF THE TRANSFER OF TRUST ASSETS TO SUBSTITUTE THE TRUSTED
Registration of documents containing the titles of the acquisition
causal dominial may be requested by the settlor, beneficiary
and / or trustee in so far as to prove their interest in
ensure the right to be registered. This accreditation is carried
out by
notarization of signatures on the minutes of applying for registration by making
reason for the change in ownership operated.
In cases where transmission is provided through
dominial public deed before a notary, praying
of registration must be carried out by the authorizer.
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