LEY 24441 FIDEICOMISO PDFJune 18, 2020
Registro Declarativo Oponibilidad Novedades: Registración del dominio fiduciario. Nuevos Documentos inscribibles. Fideicomiso en el Nuevo. Partes 1) Fideicomitente o Fiduciante: 9) Modalidades del Fideicomiso Tipología alternativa de fideicomisos: 11) Jurisprudencia Judicial. FIDEICOMISO INMOBILIARIO Definición Art. Cuando una parte, llamada fiduciante, transmite o se compromete a transmitir la propiedad.
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After the massive economic and political crisis in Argentina in ; a period with demonstrations- clashes between demonstrators, the police causing several demonstrators death- civil and social unrest, where Argentina had 5 presidents in a week; there was a president elected by the senate in a context of extreme economic and political emergency. In elections were called and Mr. There was a vacuum of power. Kirchner died in and fideicimiso his wife was reelected for another four-year term. This year period of the Kirchners in power would end in December The electoral system, the judiciary system, the media law system, and there was an attempt to amend once again the Constitution which was halted due to the poor result of the legislative elections.
Among these drastic changes in the Argentine legal system, there was the complete change of the Argentine Civil Code and the Argentine Commercial Code that had been in force since the Civil Code and since The commission to propose the new legislation was called by a presidential decree in and was composed of three members; two Supreme Court Justices and one former judge.
The project to unify and enact new legislation with the Civil and Commercial Code had been passed into law on October with — to be honest- little debate. This does not mean, however, that the reform is unnecessary or evil; it is just that there was little consensus as fixeicomiso the need or debate over the reform.
The CCC introduces many amendments fideivomiso may affect our clients.
In this article, we will discuss the main changes affecting trusts, the matrimonial property regime, forced heirship rules and the basic amendments to the corporate law regime under the CCC. Trusts are now regulated in Chapter 30 of the CCC, which incorporates suggestions of legal scholars and case law with respect to certain issues of interpretation and application of trust law.
However, future inheritances cannot be held in trust. Moreover, guaranties cannot be assigned without the credit that the guarantees serve as such. In other words, interest in secured property cannot be assigned without their secured credit secured, and therefore, they cannot be held in trust.
This will increase the cost of setting up and managing a trust. This Section provides that when the trustee fails to purchase insurance or when the insurance coverage proves unreasonable with respect to risk or amounts, the trustee is responsible under gideicomiso terms of Section Therefore, in this case, the trustee is strictly liable for the damage caused by the risk or defect of the assets held in trust.
Although current Videicomiso Law did not expressly establish a leey for the trustee to be a trust beneficiary, most scholars believed that this prohibition was implied by such Law. With regard to the remainder beneficiary fideicomisariohowever, Section of the CCC provides that the trustee cannot be a remainder beneficiary. Title II of the CCC refers to the matrimonial property regime, Chapter I refers to the general provisions of the matrimonial property regime and Section 1 deals with the matrimonial conventions, a whole new concept under Argentine law.
Section of the CCC establishes that in the event that no convention is made or the convention does not set forth any provision regarding the property regime, the traditional shared property regime will be applied Section The former civil code, in force until August 1st,characterized the marriage property regime as the formation of a mass of goods that, upon termination of marriage, would be shared between the spouses. In which case, each of them would have a common expectation on the acquired goods.
The former civil code fideicomlso a legal, imperative and immutable regime. Lry conventions were allowed only in the situations set forth in the civil code, which did not include the right to opt for a particular regime. The abovementioned section introduced the possibility for future spouses to enter fideixomiso marriage videicomiso, but at the same time, it limits the scope of such agreements.
In the event that the spouses decide to change the regime, the amendment must also be made by Convention and by a notarially recorded instrument. In addition, the spouses ly have been married for at least one year Section In the event that there are creditors affected by this change, they will have one year to object, as from the date they became aware of the change. Notwithstanding some changes, the new regime of shared property is still characterized by the distinction between personal assets and shared property.
Each spouse is not entitled to receive any personal assets belonging to the other spouse upon dissolution of the marital partnership.
ASPECTOS REGISTRALES DEL FIDEICOMISO by Rocío Niño on Prezi
On the other hand, shared fideicmoiso must be shared because it is 244441 that the acquisition of the said assets was carried out jointly. Each spouse is liable to their creditors with their own fideicomisp and the shared property acquired by them. Section of the CCC sets forth a fideicomieo of personal assets including, among others, assets that each spouse owns at the moment marriage was solemnized, assets acquired after marriage either by inheritance, legacy or gift.
It should be noted that if such assets were jointly acquired, they will be deemed personal assets in equal proportion. This fixeicomiso the reason why it is so important to specify in the marital agreements which are the assets that each spouse contributes to marriage. As a general rule, all assets that are not personal will be shared.
Section of the CCC establishes a list of shared property, including, among others, assets acquired at random games, proceeds resulting from the profession of each spouse, and assets acquired after marriage whose right has vested prior to divorce.
However, the management and disposal of shared property belongs to the spouse that has acquired them. The exception to this rule is the consent of the other spouse for transferring or taking out mortgages on recorded shared property, shares of stock or businesses.
The main amendment of the CCC is the regime of separate property. Through this regime, the spouses maintain the full management and disposal of their personal assets, and each of them is liable for the debts each of them incurred, except those incurred by one of fideifomiso spouses to pay for ordinary household needs, or the maintenance and education of their children Section It should be noted that only in these cases the spouses are jointly liable.
The regime terminates upon dissolution of marriage or by modifying the regime agreed on between the spouses. Once marriage is dissolved, the undivided property, which could lead to conflict of interests, will be divided in accordance with the provisions regarding inheritances set forth in the CCC. Notwithstanding the differences between the two regimes, there are several provisions in common, such as: Moreover, it should be noted that the termination of marriage under either the shared property or the separate property regime, will result from the dissolution of the marriage, or by modifying the regime agreed on between the spouses.
The CCC, under title X, introduces some amendments to forced heirship rules. In Argentina, there are two systems regarding inheritance: As a result of the combination of these two systems, there are three types of heirs in our country: The forced heirship portion is a portion of the estate that law reserves for certain heirs forced heirs. The forced heirs, i. This means that upon death of the decedent, the heirs have all rights and shares of the decedent in an undivided way, except those that cannot be inherited.
However, the remaining heirs, either established by will or established by law, such as brothers, sisters, uncles, aunts, nephews or cousins, cannot hold possession of the assets of the estate without the intervention of a judge, before whom the abovementioned heirs must demonstrate the death of the owner of such assets and their right to inherit.
These proceedings may be also initiated when the decedent has left no assets upon his death, but has made gifts. Section governs the supplementary action by means of which the forced heir who was given less than his forced portion is entitled to require his supplementary portion.
In accordance with the abovementioned provisions, section and set forth the abatement of gifts and legacies, in order to receive or supplement their portions. The new Code modifies the reserved portions as follows: For the calculation of the portion corresponding to each descendent only claimed gifts, which were made days prior to his birth or, the birth of the ascendant to whom he represents, will be taken into account.
With regard to the surviving spouse, the gifts made after marriage are taken into account Section Pursuant to Sectionif there are only descendants or ascendants, the portion available will be calculated in accordance with the applicable reserved portions.
If there are heirs with different forced portions, the portion available will be calculated in accordance with the greater reserved portion. The CCC introduces the concept of improvement, which was unknown in our legislation, allowing for the decedent to reduce the reserved portion in order to exclusively improve it for disabled heirs, whether they are descendents or ascendants. The CCC introduces the process of bidding by means of which any of the heirs is entitled to request a bid for any of the assets of the estate in order for that heir to be adjudicated said asset for an amount greater than that of the appraisement, provided that the co participants do not exceed the offer Section Notwithstanding this, Section expressly prohibits the creation of trusts over future inheritance.
The CCC provides for an extensive doctrine of piercing the corporate veil. We believe this wording of Article of the CCC is too broad planting the seeds for innumerable claims for extended liability to persons that may have had nothing to do with the relevant operations of the entity. The CCC classifies entities in either public or private. Public entities are the Federal State, the Provinces, the City of Buenos Aires, the municipalities, autarchic entities, foreign states, organizations created by public international law, and the Catholic Church.
The CCC defines as private entities: As to the legal pyramid, the CCC provides Article provides that private entities shall be governed:. In this sense, the CCC provides that the following are the main attributes of private entities are:.
As to the functioning of the so-called private entities — for our purposes, private companies- the CCC provides that:.
Article 1 of the ACL provides that there will be a company when one or more persons, according to the corporate types provided fideicomso the ACL, are obliged to make contribution in order to produce goods or services, participating in the profits 42441 contributing to the losses. The main differences between the other corporate types and the one-man corporation are:. Section 23 of the ACL provides that any of the partners can represent the company showing the bylaws of the company.
The limits to the members and managers provided in the bylaws can be invoked between the partners. In order to purchase registered assets real estate, trademarks, planes, vehicles, ships, etc.
The Resolution is a comprehensive text fidejcomiso regulates all the procedures that are carried out by the PR and include all prior individual regulations of the PR adapting such regulation in the Resolution to the amendments to the corporate laws provided in the CCC and the ACL. The Resolution and this whole new registration system will come into effect on November 2 , however, certain regulations are applicable since August 3,such as:.
As fieicomiso, the Resolution brings about the regulations and general resolutions issued in the past decade, thus re-arranges those former resolutions incorporating also certain applicable jurisprudence and the opinion of scholars.
Index of /archivo/2016/legislacion/nacional
The procedures initiated until November 2, and until their termination; however, the relevant applicant can request the application of the Resolution, if the relevant applicant believes that the terms of the Resolution are more favorable. As from November 2, the Resolution will come into effect for all the procedures filed before the PR. In summary, we have many changes to digest in a short period of time. The new CCC is quite different than the ones we had for over years and the legislative technique is quite different; the former code had notes explaining the rationale under each article.
However, many of the amendments are welcomed. With regard to trusts, the amendments introduced by the CCC have maintained the systematization and text of the current Trust Law. The amendments concerning the marriage property regime included in the CCC give individuals greater freedom in matters of management and disposal of property.
The spouses-to-be may choose among two different property regimes, carrying different consequences. The CCC allows for the future spouses to protect their personal property and keep it away from the marital partnership.
In connection with forced heirship, here once again we see that the new CCC provides an interest solution, giving more freedom to individuals since the forced portions previously established by the Civil Code were strongly criticized — they were considered excessive.
Overall, the CCC substantially improves the concept of forced heirship portions, both in its extension as well as in its clarity, in relation to the previous provisions set forth in the Civil Code. Finally, corporate-wise we welcome the possibility to hold board meetings by electronic means, but do not understand why then the requirement to have a majority of members of the board being resident was maintained since members of the board can make decisions about the company by electronic means even being far from the corporate domicile.
Esto no quiere decir, sin embargo, que la reforma resulte innecesaria o mala; solo que hubo poco consenso en lo que respecta a la necesidad de debate en torno a la reforma. El CCC introduce varias modificaciones que pueden afectar a nuestros clientes. Sin embargo, no se puede constituir fideicomiso sobre herencias futuras. De esta manera, incrementa el costo de constituir y administrar un fideicomiso.