Dear Students,
By Dr. Hocsman expressly stated, the partial Recuperatorios and the end of those who must sit for will be taken on Wednesday 12/12 at 11 am.
The venue will be in front of bdellium.
Atte. Alan
Gobato.
Monday, December 3, 2007
How Long Will Fruits Stay Fresh
Recuperatorios DATE AND TIME SAVING AND FINAL PRE
Dear Students,
By Dr. Hocsman expressly stated, the partial Recuperatorios and the end of those who must sit for will be taken on Wednesday 12/12 at 11 am.
The venue will be in front of bdellium.
Atte. Alan
Gobato.
Dear Students,
By Dr. Hocsman expressly stated, the partial Recuperatorios and the end of those who must sit for will be taken on Wednesday 12/12 at 11 am.
The venue will be in front of bdellium.
Atte. Alan
Gobato.
Monday, November 26, 2007
Can I Paint A Toilet?
Leasing
SAVINGS CONTRACT PRIOR
(brief notes)
Alan Carlos Gobato
Copyright ®
October 1999 Permission for publication to the Universidad Argentina de la Empresa - Area Senior UADE
for course Updates come in Consumer Rights.
SAVINGS CONTRACT PRIOR.
1.
concept prior savings contracts is a multilateral contract concluded between a company (limited or cooperative) authorized by the state agency in control of legal persons (whether at the national or provinicial - General Inspectorate of Justice - Provincial Office Legal Persons - National Institute of Cooperatives and Mutual and Mutual Provincial Institute and Cooperative Action), known as Management Company and certain natural or legal persons (called SAVERS - constituting a group) in order to make savings prior to an purpose, by which the management company is committed to managing the assets of the group, mandated by each subscriber savers, and to award the thing under contract at the times and ways agreed, upon completion of the condition to which such obligation was subordinate in exchange for the consideration of the depositor to pay a fee - fee or commission as the management company.
It generates a commitment to contribute to the formation and maintenance of the group, through the payment of rates of capital stock in hiring, the administrative capital maintenance savings in bank accounts by the group.
2. FEATURES AND REQUIREMENTS: Contract Savings
stained Previous of the following notes:
a) is a multilateral contract related, which creates links between the Management Company and the Group of Savers, Savers and among the same group together.
all intertwined contracts allow the formation of the distribution network, joining other agreements among themselves, the integration of a group.
For its part, having specified a certain order and things, contains a contract between the manufacturer or importer of the thing to award, its distributors and savers constituents. Thus we verify the existence of related contracts. It is a classic case of prior savings contracts promoted by subsidiary companies of auto manufacturers.
b) is a unique business, multi-party relationships, mandate and management by the Management Company, and on the other, relations of support and solidarity with others, by the savers.
c) The management company must be authorized by the State.
d) The management company must be intended solely to manage funds from prior savings.
e) is an onerous contract, characterized as a contract of commercial law regarding the relationship between the Administrator and savings, atypical, unnamed, synallagmatic in terms that can occur in adhesion contracts - collective or individual - .
f) Absence of legal personality of the group.
g) No contribution to the losses.
h) irrevocable mandate of the administrator.
i) Comptroller and the State Auditing Administration Society.
j) is a typical consumer contract, since savers printed on the acquisition by this system, the purpose of disposal for personal use. So
always involved a Consumer.
Even most contracts contain clauses in their adhesive that savers are bound for the unit purchased for personal or family use. Excluding the possibility of commercial exploitation.
exceptions prove the rule that, in the case of plans for taxi drivers carriers in general, specifically makes clear that the fate of the unit is for the carriage of goods or passengers. Although mostly
has appreciated in these cases the financing Leasing (used improperly as a purchase with no mutual pledge and head retention of title by the seller or giver).
3) the Management Company:
administrator is required to be a corporation, mutual or cooperative. If it is a corporation has permanent control of the state (art. 299 LSC). The purpose of the manager should only manage savings groups prior. It thus has in safeguarding the Group's assets, business savings or other financial benefit of the group, which could realize the management company.
The administrator does not have dispositive power over the assets of the group. They require a minimum capital subscribed and paid (usually a high capital - in 1994 the General Inspectorate of Justice required a minimum capital of $ 120,000 - and it is given that the risk management group prior savings can cause damage to a considerable amount of savers) annually updated integrated cash, or investments easily achievable (art. 5 and 6 of the PRC Resolution 10-87, art. 3 º Decree 142.277/43.
The administrator requires that plans that will make offer, approved by the PRC. If the contract is the allocation of specific assets, it must present to the PRC for the comptroller's contract manufacturer PROVISION OF GOODS such goods with the administrator. This provision confirms the existence of related contracts.
may also be administered, state banks, whether national, provincial or municipal, with permission. Comptroller
regime arises from the provisions of the PRC and art. 299, 303 and conc. Law 10,550.
The comptroller of the state banking institutions is higher because they require the authorization of the Central Bank of the Republic Body and corporate controller. (Or similar provincial IGJ).
The power controller of these management companies is a power not delegated by the provinces to the nation.
In the case of cooperative societies, requires the authorization of the National Institute of Cooperatives and Mutual (INACYM) and the PRC.
The National Institute of Cooperatives and Mutual (INACYM) has organized a so-called SERVICE MUTUAL SAVINGS ASSOCIATED WITH GIVEN NUMBER.
The permanent state control is verified through reports to be supplied periodically to the agency comptroller (arts. 21 to 24 Dec. 142.277/43). It should report the date and place are to be undertaken The monthly event for the award of property to the depositors, to allow attendance of an official of the PRC, pre and post publicity announcing its results, reports of expenditures and revenues of the month, quarterly reports, status groups, companies which take effect in the payroll books initialed contracts signed, the panels of the same, the award, the transfer and waived, etc (Res. IGJ 43/69) .-
4) SAVERS SUBSCRIBERS
They may be natural or legal persons who have the ability to hire and dispose of their property.
have the obligation to pay the rates that make up the subscribed capital, administrative costs, fee or commission from the hiring manager and life insurance in the event of the risk of death, the compensation received to cancel the debit balance of capital contributions, expenses and commissions, and the heirs of the depositor may perceive the object of contract.
5) GROUP SAVINGS
has been discussed regarding the legal status of called group or circle of savers.
Some see it looking Accidental Society membership, and has also been considered as a Location Services, and finally it has been considered an independent contract.
however, is not credited as a legal personality to the group for lack of tipificantes elements of legal persons (Heritage Independent, executive, administrative, and standards that recognize the patrimonial autonomy and the existence of bodies to express the collective will), all commitments and obligations of the group are those of the Administrator. There can be no group's creditors or debtors of the group but the Management Company and each of the savers subscribers (art. 39 CC). The group is not even the lender, as it lacks personality and ability to acquire. Can not even give a mandate, nor has the power to be plaintiff or defendant in court.
The administrator fails to act for and on behalf of the group, but own behalf and interest.
Subscribers inamobibles group are not as they can transfer the contract and as a debtor, without consulting the other subscribers. This destroys any idea of \u200b\u200bAssociation preson (art. 671 CC and Art. 31 LSC).
6) COMMON FUND
is the heritage of the group, and is composed of contributions from subscribers, constituted by their contributions, interest and penalties.
are the property of subscribers, but made available to the Administrator, who has the same, whether in asset investment or savings scheme. The Administrator shall be accountable to each subscriber, as the group has no executive or deliberative representative.
7) NO TAX LOSSES.
Subscribers are not required to contribute to the losses. But the Administrator must take care.
funiconar The system begins from the group has been formed. There is a condition precedent to this case, so that the rights and obligations begin to run since the group has been constituted. According to the position that denies the associative character, we can say that is the capital transitional meeting for a common purpose.
8) THE CONTRACT:
is not formal, it does not take the form of a public instrument, but if the demands of art. 916 of the CC This is logical, dado que encarecería el sistema comercial y operativo. Sin embargo existen distintas normativas que aunque fueron dictadas para otros negocios le resultan aplicables, a los contratos de ahorro previo. Respecto del tamaño de las letras, se regirá por las normas de la Resolución 366/69 y 8/82, 1/85, y 8/85.
En cuanto a las cláusulas especialmente necesarias se remite al Decreto 142.277/43, y en cuanto a las cláusulas generales se remite a la Ley 23.270, 11.672.
9) OBJETO:
Constituir un grupo de suscriptores de ahorristas, para un fín determinado, que puede consistir en la entrega de una suma de dinero, o de un bien determinado que puede ser adquirido por la Administradora para entregarlo subscribers, or by the method of the award or the award.
The award process may be the method of drawing. Subscriber benefited in the draw acquire the property, right or sum of money, and start running the obligations subject to condition precedent to the delivery or tradition of acordadad thing as purpose. At that time, the Administrator becomes lender shall, and the subscriber saver borrower, the balance of shares remaining charge, and may even be granted a mortgage or pledge.
The bidding process, however is that the subscriber or subscribers who wish to offer a number of shares constituting the capital character advance at the monthly meeting in which the draw is done, and the largest provider of assessments will be awarded by tender.
10) OBLIGATIONS OF THE PARTIES:
The obligations of the parties as follows:
a) SUBSCRIBER
1) Pay the fair share capital plus expenses, commissions, etc. the Administrator.
2) To provide support the group through a fund payment delinquencies.
3) Stay in the group until the full term of its constitution and its conclusion on expiry of the quota plan.
b) COMPANY ADMINISTERING
1) Raise the subscriber savings deposits for purposes of compliance the contract, and integrate the mass of the group.
2) To manage wisely the goods are entrusted with shells.
3) Carry your books according to the parameters of generally accepted accounting standards and legal requirements, and account for the exercise of the mandate given to subscribers.
4) Make drawings and bids, and award the contract goods to the beneficiaries.
5) Comply with state revenues to the institutions of accountability.
6) Offer only plans approved by the enforcement authority.
7) Repay all amounts received by way of penalty and interest for late pro rata among the subscribers of the same plan.
8) Inform any news Savers (extinction, modification, more expensive) for the good or purpose, under contract or contingency cualqquier commitment to the group of savers.
9) Refrain from modifying the contract terms or performance of the contract during its term (DURABILITY OF CONTRACT TERMS).
This is provided as well, because it is long-term contracts (average between 60 and 84 months / quotas), in which market conditions can vary, affecting the stability of contract terms. It sometimes happens that a certain well-defined model, does not occur, resulting in the need to substitute other similar conditions.
is the duty of administering suministrante, ensure good provision of conditions similar to those recruited initially, in terms of technical specifications and price.
11. CONFLICTS BETWEEN CONSUMERS AND BUSINESS MANAGERS SAVERS.
First, we must accept that their role as consumers, the gain is fall within the legal regime of the Consumer Protection Act.
This means that it will benefit with the guiding principles on the subject (pro dubio consumption, the power extinctive the contract).
More however, when resolving the conflicts generated by conflicts of interest between consumers and the management companies, there are jurisdictional problems.
Thus, the General Inspectorate of Justice has assumed original jurisdiction unilaterally, in administrative proceedings, in collusion with the rules set forth by art.
of the Consumer Protection Act spewing original jurisdiction to the National Consumer Defense, and to be established in each province.
This new issue has not yet been decided, coexisting administrative police power by both. 
SAVINGS CONTRACT PRIOR
(brief notes)
Alan Carlos Gobato
Copyright ®
October 1999 Permission for publication to the Universidad Argentina de la Empresa - Area Senior UADE
for course Updates come in Consumer Rights.
SAVINGS CONTRACT PRIOR.
1.
concept prior savings contracts is a multilateral contract concluded between a company (limited or cooperative) authorized by the state agency in control of legal persons (whether at the national or provinicial - General Inspectorate of Justice - Provincial Office Legal Persons - National Institute of Cooperatives and Mutual and Mutual Provincial Institute and Cooperative Action), known as Management Company and certain natural or legal persons (called SAVERS - constituting a group) in order to make savings prior to an purpose, by which the management company is committed to managing the assets of the group, mandated by each subscriber savers, and to award the thing under contract at the times and ways agreed, upon completion of the condition to which such obligation was subordinate in exchange for the consideration of the depositor to pay a fee - fee or commission as the management company.
It generates a commitment to contribute to the formation and maintenance of the group, through the payment of rates of capital stock in hiring, the administrative capital maintenance savings in bank accounts by the group.
2. FEATURES AND REQUIREMENTS: Contract Savings
stained Previous of the following notes:
a) is a multilateral contract related, which creates links between the Management Company and the Group of Savers, Savers and among the same group together.
all intertwined contracts allow the formation of the distribution network, joining other agreements among themselves, the integration of a group.
For its part, having specified a certain order and things, contains a contract between the manufacturer or importer of the thing to award, its distributors and savers constituents. Thus we verify the existence of related contracts. It is a classic case of prior savings contracts promoted by subsidiary companies of auto manufacturers.
b) is a unique business, multi-party relationships, mandate and management by the Management Company, and on the other, relations of support and solidarity with others, by the savers.
c) The management company must be authorized by the State.
d) The management company must be intended solely to manage funds from prior savings.
e) is an onerous contract, characterized as a contract of commercial law regarding the relationship between the Administrator and savings, atypical, unnamed, synallagmatic in terms that can occur in adhesion contracts - collective or individual - .
f) Absence of legal personality of the group.
g) No contribution to the losses.
h) irrevocable mandate of the administrator.
i) Comptroller and the State Auditing Administration Society.
j) is a typical consumer contract, since savers printed on the acquisition by this system, the purpose of disposal for personal use. So
always involved a Consumer.
Even most contracts contain clauses in their adhesive that savers are bound for the unit purchased for personal or family use. Excluding the possibility of commercial exploitation.
exceptions prove the rule that, in the case of plans for taxi drivers carriers in general, specifically makes clear that the fate of the unit is for the carriage of goods or passengers. Although mostly
has appreciated in these cases the financing Leasing (used improperly as a purchase with no mutual pledge and head retention of title by the seller or giver).
3) the Management Company:
administrator is required to be a corporation, mutual or cooperative. If it is a corporation has permanent control of the state (art. 299 LSC). The purpose of the manager should only manage savings groups prior. It thus has in safeguarding the Group's assets, business savings or other financial benefit of the group, which could realize the management company.
The administrator does not have dispositive power over the assets of the group. They require a minimum capital subscribed and paid (usually a high capital - in 1994 the General Inspectorate of Justice required a minimum capital of $ 120,000 - and it is given that the risk management group prior savings can cause damage to a considerable amount of savers) annually updated integrated cash, or investments easily achievable (art. 5 and 6 of the PRC Resolution 10-87, art. 3 º Decree 142.277/43.
The administrator requires that plans that will make offer, approved by the PRC. If the contract is the allocation of specific assets, it must present to the PRC for the comptroller's contract manufacturer PROVISION OF GOODS such goods with the administrator. This provision confirms the existence of related contracts.
may also be administered, state banks, whether national, provincial or municipal, with permission. Comptroller
regime arises from the provisions of the PRC and art. 299, 303 and conc. Law 10,550.
The comptroller of the state banking institutions is higher because they require the authorization of the Central Bank of the Republic Body and corporate controller. (Or similar provincial IGJ).
The power controller of these management companies is a power not delegated by the provinces to the nation.
In the case of cooperative societies, requires the authorization of the National Institute of Cooperatives and Mutual (INACYM) and the PRC.
The National Institute of Cooperatives and Mutual (INACYM) has organized a so-called SERVICE MUTUAL SAVINGS ASSOCIATED WITH GIVEN NUMBER.
The permanent state control is verified through reports to be supplied periodically to the agency comptroller (arts. 21 to 24 Dec. 142.277/43). It should report the date and place are to be undertaken The monthly event for the award of property to the depositors, to allow attendance of an official of the PRC, pre and post publicity announcing its results, reports of expenditures and revenues of the month, quarterly reports, status groups, companies which take effect in the payroll books initialed contracts signed, the panels of the same, the award, the transfer and waived, etc (Res. IGJ 43/69) .-
4) SAVERS SUBSCRIBERS
They may be natural or legal persons who have the ability to hire and dispose of their property.
have the obligation to pay the rates that make up the subscribed capital, administrative costs, fee or commission from the hiring manager and life insurance in the event of the risk of death, the compensation received to cancel the debit balance of capital contributions, expenses and commissions, and the heirs of the depositor may perceive the object of contract.
5) GROUP SAVINGS
has been discussed regarding the legal status of called group or circle of savers.
Some see it looking Accidental Society membership, and has also been considered as a Location Services, and finally it has been considered an independent contract.
however, is not credited as a legal personality to the group for lack of tipificantes elements of legal persons (Heritage Independent, executive, administrative, and standards that recognize the patrimonial autonomy and the existence of bodies to express the collective will), all commitments and obligations of the group are those of the Administrator. There can be no group's creditors or debtors of the group but the Management Company and each of the savers subscribers (art. 39 CC). The group is not even the lender, as it lacks personality and ability to acquire. Can not even give a mandate, nor has the power to be plaintiff or defendant in court.
The administrator fails to act for and on behalf of the group, but own behalf and interest.
Subscribers inamobibles group are not as they can transfer the contract and as a debtor, without consulting the other subscribers. This destroys any idea of \u200b\u200bAssociation preson (art. 671 CC and Art. 31 LSC).
6) COMMON FUND
is the heritage of the group, and is composed of contributions from subscribers, constituted by their contributions, interest and penalties.
are the property of subscribers, but made available to the Administrator, who has the same, whether in asset investment or savings scheme. The Administrator shall be accountable to each subscriber, as the group has no executive or deliberative representative.
7) NO TAX LOSSES.
Subscribers are not required to contribute to the losses. But the Administrator must take care.
funiconar The system begins from the group has been formed. There is a condition precedent to this case, so that the rights and obligations begin to run since the group has been constituted. According to the position that denies the associative character, we can say that is the capital transitional meeting for a common purpose.
8) THE CONTRACT:
is not formal, it does not take the form of a public instrument, but if the demands of art. 916 of the CC This is logical, dado que encarecería el sistema comercial y operativo. Sin embargo existen distintas normativas que aunque fueron dictadas para otros negocios le resultan aplicables, a los contratos de ahorro previo. Respecto del tamaño de las letras, se regirá por las normas de la Resolución 366/69 y 8/82, 1/85, y 8/85.
En cuanto a las cláusulas especialmente necesarias se remite al Decreto 142.277/43, y en cuanto a las cláusulas generales se remite a la Ley 23.270, 11.672.
9) OBJETO:
Constituir un grupo de suscriptores de ahorristas, para un fín determinado, que puede consistir en la entrega de una suma de dinero, o de un bien determinado que puede ser adquirido por la Administradora para entregarlo subscribers, or by the method of the award or the award.
The award process may be the method of drawing. Subscriber benefited in the draw acquire the property, right or sum of money, and start running the obligations subject to condition precedent to the delivery or tradition of acordadad thing as purpose. At that time, the Administrator becomes lender shall, and the subscriber saver borrower, the balance of shares remaining charge, and may even be granted a mortgage or pledge.
The bidding process, however is that the subscriber or subscribers who wish to offer a number of shares constituting the capital character advance at the monthly meeting in which the draw is done, and the largest provider of assessments will be awarded by tender.
10) OBLIGATIONS OF THE PARTIES:
The obligations of the parties as follows:
a) SUBSCRIBER
1) Pay the fair share capital plus expenses, commissions, etc. the Administrator.
2) To provide support the group through a fund payment delinquencies.
3) Stay in the group until the full term of its constitution and its conclusion on expiry of the quota plan.
b) COMPANY ADMINISTERING
1) Raise the subscriber savings deposits for purposes of compliance the contract, and integrate the mass of the group.
2) To manage wisely the goods are entrusted with shells.
3) Carry your books according to the parameters of generally accepted accounting standards and legal requirements, and account for the exercise of the mandate given to subscribers.
4) Make drawings and bids, and award the contract goods to the beneficiaries.
5) Comply with state revenues to the institutions of accountability.
6) Offer only plans approved by the enforcement authority.
7) Repay all amounts received by way of penalty and interest for late pro rata among the subscribers of the same plan.
8) Inform any news Savers (extinction, modification, more expensive) for the good or purpose, under contract or contingency cualqquier commitment to the group of savers.
9) Refrain from modifying the contract terms or performance of the contract during its term (DURABILITY OF CONTRACT TERMS).
This is provided as well, because it is long-term contracts (average between 60 and 84 months / quotas), in which market conditions can vary, affecting the stability of contract terms. It sometimes happens that a certain well-defined model, does not occur, resulting in the need to substitute other similar conditions.
is the duty of administering suministrante, ensure good provision of conditions similar to those recruited initially, in terms of technical specifications and price.
11. CONFLICTS BETWEEN CONSUMERS AND BUSINESS MANAGERS SAVERS.
First, we must accept that their role as consumers, the gain is fall within the legal regime of the Consumer Protection Act.
This means that it will benefit with the guiding principles on the subject (pro dubio consumption, the power extinctive the contract).
More however, when resolving the conflicts generated by conflicts of interest between consumers and the management companies, there are jurisdictional problems.
Thus, the General Inspectorate of Justice has assumed original jurisdiction unilaterally, in administrative proceedings, in collusion with the rules set forth by art.
of the Consumer Protection Act spewing original jurisdiction to the National Consumer Defense, and to be established in each province.
This new issue has not yet been decided, coexisting administrative police power by both.
Friday, November 16, 2007
Thursday, November 15, 2007
Tropical Fish Bottom Feeders
ICOMISO FIDE
appears this
Introduction institution in the art. Civil Code 2662, as a form of revocable domain. Characterized and analyzed within the framework of property rights.
While it is a creation of Roman law, as expressed in the institutes of the a) Creditor Trust cum contracta, which was intended to ensure the creditor the payment of a debt by delivering the property of one thing, it would be restored to cash payment. Currently applies a modernized version of it in the "Trust Collateral" and b) in the Fiducia cum amico contracta, which unlike the previous one, the ceremony was constituted in the interest of the settlor. So the trust gave the trustee custody and / or administration, but against any third party outside the relationship, was the owner of the property, staying hidden convention limiting their powers.
As where the figure reaches a higher evolution is in the common law has come to be known as "trust or confidence. This is an unfolding of the "legal ownership" at the top of the "trustee" and the equity ownership or "equity" in the beneficiary's considered true owner in the scheme that complements the legal equality.
Law 24,441, known as Housing Finance, Title I, Chapter I, entered the trust business, as new form bargaining. Trying to change an institution that had shallow roots in our law.
the words of the legislators, in the explanatory memorandum of the same, the object of the institution is:
"The trust must play a central role in the housing mortgage finance, as receiver of credit rights in the mortgage instrumented , which together with the actual rights guaranteed circulation of public offering securities, channeling the savings of the community through the procedures usually called securitization and securitization. "
thus introducing a new role, and rules that do not have to look at a unique business, but a financial venture.
First place as an instrument of borrower credit financing mortgage secured for housing. Second attempt to create a business bank conviction stimulus to the issuance of mortgage bonds, and channeling public savings.
Third invite financial institutions to the creation of the securitization markets or securitization of mortgage loans secured by borrowers, mortgage and varied.
Mortgage bonds are mortgage-backed securities, mortgages for first grade and expressly consented to the act of setting up the mortgage. Missing was the regulatory
of the institution to introduce precise profiles of the rights and obligations of persons involved in the act in terms of rejuvenating the system preterintención bargaining housing, introducing a new contract - bargaining.
was an institution far into disuse in our country, but in true Anglo-Saxon countries are financing and guarantee schemes managed by the Trust's.
The legislative history that have served as a source of our current laws are the Commercial Code of the Republic of Colombia, The General Law of Credit Titles and Operations of the United Mexican States, Law 17/1941 of the Republic Panama, the Civil Code of Québec (Canada) promulgated on 18 December 1991 and Law 19,301 of the Republic of Chile.
currently being developed significantly the land trust (vg. EIDICO SA), through the development of urban complexes, but their development is more important inter-employer as security for loans or overhauling operations. Financially, as well as a way of generating cash to securitization of invoices, bills of credit or tolls, or inserted uniquely in the market for securities, by issuing bonds, listed in stock market, and which are secured by receivables arising from invoices, credit card balances, from the sale of appliances in large chain stores or mass consumption (eg Garbarino case, Coto, etc.), or trusts agriculture, for which the tenant or owner of a field gives a trustee a fiduciary to harvest and in return make a profit, the marketing of their grain.
What is trust? Important doctrinal
have issued opinions on the most appropriate definition of this new legal business of our law,
Carregal Mario has said that "Through this transaction the debtor an obligation transfers the ownership of a property owned by a third party to the effect that in the event of a breach of the obligation breached to the concurrence of the credit owed, thus canceling all or part of the unpaid debt. Thus, the lender has the guarantee that your loan will be paid by the debtor or, if this does not meet its obligation, by the third party has received an asset of the debtor with instructions to cancel the debt occurred affecting the sale of such asset. "
The same author, in his book THE TRUST, legal regulation and practical possibility, he said" ... that the essence of the trust or trust is the transfer pactum property by way of trust and may be subject to the same all goods, not just the things to also cover all subject to value intangible objects (art. 2312 CC), within the limits and subject to the terms provided to fulfill the purpose intended. (Trust, Leasing, Mortgage notes and other aspects of the Law 24,441 - 18.04.1995 LL). "
Guillermo Borda Meanwhile, in his manual of real rights of the domain is Trust," as one business in which the constituent (transferring) is proposed to transfer the domain to a person, but for various reasons, do not want it now, then uses a broker to whom you transfer domain, with the task of relaying it to the final destination to be met over time or a certain condition, the domain that holds the intermediary is called a trustee. "
The Law Trust 24,441:
The standard definition given to this contract part from the Section 1, which reads "when a person will trust (settlor) to transmit the specific property trust domain to another person (trustee), who is obliged to exercise the benefit of who is designated in the contract (RECIPIENT) and transmit it to the fulfillment of a term or condition of the settlor, the beneficiary or a third party. "
As a first premise that appears is the transmission domain of property for another, "but imperfectly and revocable"
Trust reform project:
The draft Unified Code Civil and Commercial Procedure, rule in the art. 1452 "On the indenture trustee or the trustee undertakes to transfer the ownership of assets to the trustee, who undertakes to exercise the benefit of the beneficiary designated in the contract, and to pass upon a term or condition of the trustee. "
SUBJECT OF THE CONTRACT.
Three are, in principle, subject of the trust. The settlor, the trustee and the beneficiary. Although it may be agreed upon the existence of a trustee.
FIDUCIANTE: es el transmitente de los bienes del dominio revocable. Titular dominial de los bienes.
Debe tener capacidad para disponer y administrar sus bienes.
FIDUCIARIO: es quien recibe los bienes y se obliga a ejercer el dominio en beneficio del beneficiario, y a transmitírselo al beneficiario y/o el fiduciante y/o el fideicomisario o a sus sucesores o a un tercero, al cumplimiento del plazo o condición resolutoria. Debe ser capaz para administrar sus bienes y para ser mandatario.
Es el titular del patrimonio fideicomitido durante la vigencia del fideicomiso. Es el propietario de los bienes fideicomitidos, el acreedor y deudor de los creditos y obligaciones que integran el patrimonio fideicomitido.
Esta titularidad fiduciaria shall have effect against third parties that meet the formalities of transfer of title (in the case of things) or the ownership of rights (in the case of goods) payable in accordance with the nature of the assets transferred in trust (art. 12 º).
may be a natural or legal person to act as financial authority authorized to operate as such by the law of financial institutions and legal persons authorized by the Executive.
Of the latter, it appears that require state recognition to work, granted only in cases of legal or financial institutions to make public offering to act as trustees. Must be approved by the respective law, and by the National Securities Commission. For
who are natural persons or legal persons who DO NOT public offering to act as trustees do not require any registration to be recognized by more than necessary for its operation.
The trustee must act in accordance with the law or the contract with the prudence and diligence of one who acts on the basis of trust and good faith. As to the scope of good faith and confidence required, is feared to be a specific conceptualisation for this, since the instrumentation with respect to beneficiaries or the trustees would be through contracts accession, predisposed clauses, where a party would be the weakest.
the trustee is entitled to remuneration and reimbursement of expenses, which must be agreed by contract, but the LFV authorizes judicial fixing it (art. 8 º). But shall not be held in trust, both wages and expenses as the assets of the trust is constituted for other purposes, and has served the fiduciary powers it.
The trustee has the power to dispose of trust assets, and the exercise of actions to defend them. No authorization is required to Trustor and / or beneficiary, unless otherwise agreed.
Trustee when performing acts against third parties on behalf of the trust, must finds that it does fiduciary trust account, and if the third party's request, demonstrate ability to perform the act displaying a state property or heritage statement trust property (for that is the guarantee autonomous patrimony common to all creditors of the trust and therefore an element in determining the risk of contracting).
Beneficiary: The final recipient of the trust property, upon completion of the term or condition are subject to the trust domain. Their situation is analogous to that of the recipient. But Clearly it is their right to receive full ownership of the assets constituting the trust estate that may not be the same as to constitute a trust there. Must have ability to hire and manage.
TRUSTEE BENEFICIARY RELATIONS: They are usually the same person, but they may be different people. The Committee on Amendments to the Civil Code (Decree 468/92) provides that the trustee is the residual beneficiary, and if they do not accept or come into existence is attributed as the beneficiary at the same settlor.
may be individuals or legal entities. The beneficiary must be given or be subject to subsequent determination (Art. 2 Law 24.441) must be reported data allowing their identification in the act of the constitution.
Legal status: (In the Civil Code and Law 24.441).
The institution is legislated by Title VII, under the name THE IMPERFECT DOMAIN (located on the grounds of property rights) with amendments introduced by Law 24,441. - Domain
revocable His character, arises from the harmonious play of arts. 1507, 2661, and 2662 (with the reform of Law No. 24,441) of the CC of what follows is an imperfect mastery over a real right or revocable trust one person over a thing itself, movable or immovable, or the reserved by the owner perfect only one thing that alienates your domain useful. Is the domain that is acquired by virtue of a trust established by contract or by will, and is subject to last only until the termination of the trust, for the purpose of delivering the thing where it belongs, under the contract, the will or the law (art. 73 º Law 24.441).
The domain trust is revocable. It combines this with the domain revocable legislated by the art. CC 2663 and is one that has been passed under a revocable at will that has passed, or when the current owner may be deprived of property by a case from its title. Also as noted above, This contract is legislated under the provisions governing the debentures of corporations, art. 338 of the Companies Act (L.19550.
Characters of the contract:
TYPICAL or NOMINEE: Since the enactment of Law 24,441, the business was incorporated into the classification of typical contracts and nominees.
PLURILATERAL: There is a contractual relationship established between the Trustor, the Ficudciario, the Beneficiary and the Trustee. A person can be settlor, beneficiary and trustee.
(Transmits the domain revocable)
A person can not be sole trustee and settlor or beneficiary of the trust, but if there are multiple trust one of them may not be the sole beneficiary.
The trustee has a duty to exercise the real right over the good purpose of the trust, in the agreed form and give the intended final destination.
CONSENSUS: The contract establishing the trust is a consensual contract is perfected by mere consent solo or party, but according to the rules of the Civil Code, requires a real law of evidence and modes, the title is the trust agreement, are the traditional modes (requires the effective transfer of the trust assets to the settlor Trust - art. 1 º) and registration of the Trust for the acquisition to be perfect against all erga omnes (art. 2505, Cod. Civil).
When trust assets are things from the standpoint of the real right of ownership, one could say that:
a) The trustee does not have any real right, can only perform certain actions on behalf of the trust assets to the omission of act of the trustee (art. 18 º) .-
b) The trustee has a stranglehold on these things imperfect, imperfection from two limitations:
B - 1) As to the object can only manage and dispose of things into trust for fulfill the purposes of the trust and under the limitations and restrictions established in the contract (art. 17 º).
B - 2) As to time: the end of the trust must pass the trust must convey full ownership to the trustee (art. 1 in fine).
Necessarily, there is a coexistence of real link and obligational. The trustee has not only a personal and credit rights, which is to obtain compliance with the obligation assumed by the trustee, as this owner of the domain or other law passed by the trustee, who receives full power.
PAYMENT: In general, the agreement is for an end to economic profit, as was intended by our lawmakers and manifested in the preamble of the Law 24,441, however in some cases can be free, as in the case of the provisions and provisions for his own inability also known as wills for life, which are provisions that establish a person for the event that any condition suffer a disability, and in anticipation of this, takes the form of the trust agreement for ensure a dignified life. (For more this suggests the note reading ¨ The trust and the underlying legal relationship, published in The Law of 26.II.96), or exercised a sort of curator of unhealthy and disabled persons, in which the trustee curator property of the insane, to procure their sustenance and care.
Switch: It follows from the essence of commutative character with perfectly bilateral obligations.
Instant Execution: The contract is concluded ab initio, since its conclusion, as required by law. Thus the mere consent of the parties perfect. FORMAL
: In our law, as ruled by art. CC 1884 should be an instrument establishing this public property right relating to real estate or registrable property, while in the field of credit rights, are governed by the law of circulation, or a non-formal.
INDEPENDENT HERITAGE: The Heritage of the parties to the contract did not undergo any addition or modification, other than integrating heritage Trustor and Trustee. This is a CAPITAL OF ALLOCATION.
UNIQUENESS OF BUSINESS: Following on this point Farina, argues that the business trust must be understood as a unitary concept. This position was held prior to the enactment of Law 24,441, and the text confirms this position, since no is a superposition of two opposite contracts, but it is a single contract. There is one business that determines an inseparable link between the actual act of transferring the right and the relationship obligational to do some exercise that right. RELATED
: The plurality of recipients, and their relationship with the trustee, and in turn the relationship this would have with the trustor, creates a binding contract for the cause that gives rise, so are related to each other to spread their effects jointly, on the whole network of contracts and contractual responsibility on trustor and trustee in respect of the rights of the beneficiaries and trustees. This adds to the character Business uniqueness assigned Farina. OBJECT OF THE CONTRACT
Usually it is a transfer of ownership of their own tradition of his for purchase, gift, inheritance or bequest, designed to last longer. This would be a business unit based on a structural unit of the legal relations which arise from real and obligational. That relationship or real right required, according to the rules of the Civil Code. Kiper has argued that''It is the same, characteristic of the domain trust (section 2662, Code. Civ): Domain trust is that trust is acquired by a singular, subject to last only until the completion of a solving condition or until the expiration decisive, for the purpose of restoring the thing. ''(Kiper, Domain Legal System Trust, La Ley, Buenos Aires, 1989.).
The contract is the establishment of autonomous assets, for the sake of a predetermined end, consideration or not, and will end when transmitted or revocable trust rule upon completion of the resolving condition or term. Contains, inter alia, an obligation to the trustor and trustee for the beneficiary or trustee. Given
your property, plural purposes for which it was conceived, and its use in countries where instrument was adopted as financial and real estate businesses as a tool for collection of savings, and this way they set up companies or investment funds.
This contract is not perfected in a real contract of those who are improving the delivery of the thing (deposit, mutual loan, grant manual, annuities), but in a consensual contract perfect.
CONTENT OF CONTRACT (4 º and 7 º LFV) The trust agreement to fill its content requires the following elements or requirements:
A) an autonomous patrimony (separate or independent from the assets of each party involved in the trust), which is:
1 - Individualization of goods under the contract. The determination must be certain and definite. If possible does not lead to the identification of the property at the time of the contract should include the description of the requirements and characteristics to be met by assets.
2 - The determination of how other property shall be incorporated into the trust.
B) affect performance of a given object (in a similar way, the assets of a company is concerned to fulfill its corporate purpose)
C) For a limited time period can not exceed 30 years or life recipient's incapacitated.
3 - The term or condition subject to which trust domain, which can never extend beyond the thirty years since its establishment, unless the beneficiary is incompetent, in which case may last until death or the cessation of his disability. D) The contract is an imperfect head domain trust
D.1.) Regarding the subject: You can only manage and dispose of things into trust to fulfill the purpose of the trust and under the limitations and restrictions established in the contract (art. 17 º) d.2. ) In terms of time: the end of the trust the trustee must convey the full propidead the trustee (art. 1 in fine).
4 - You must enter the destination of the goods will the end of the contract.
5 - Must contain the rights and obligations of the trustee and how to replace it if it ceased production in its functions.
6 - Can not contain, under penalty of absolute nullity, invalid any agreement to waive the obligation of accountability, or the negligence or fraud that may be incurred or dependents own trustee, or the prohibition to acquire yes definitely trust assets.
Thus, at least, the Trust is accountable once a year (art. 7 in fine).
The contract must be read as completely as possible to prevent the trustee is unable to act due to lack of instructions or conflicting parties. Should be read as documentary credit contracts where the performance of banks involved is almost automatic.
types of security:
The trust agreement itself it is a contract that is perfected by mere consent, requires the title and how to produce their effects on the rights of the trustee and separate assets of the trustee and trustor exempt from individual or collective action by creditors of each other.
It follows that the trustee is the holder of fideiciomitido assets during the term of the trust. He is the owner of the trust assets, the creditor and debtor of the debts and obligations comprising the trust property. The trust property is independent from that of the trustee (art. 16 º. This ownership trust shall have effect against third parties as to compliance with the formalities of transfer of title (in the case of things) or the ownership of rights (in the case of goods) payable according to the nature of the transferred assets in trust (art. 12. So with regard to:
A) property will fit into the Land Register the title deed, executed by the Trustor and the Trustee and detailing the terms of the contract establishing the trust of the patterns arising from imperfect domain Trust in the property (art. 13 º).
B) registrable property shall be recorded in the registry for domain translational document or record the transfer of the domain, depending on whether the case indicating that it is a trust domain and, perhaps, identifying the trust or its restrictions, in a manner similar to that used for registering pledges or liens on such property (art. 13 º).
C) for the Shares and Securities Nominee, the transfer is by endorsement, which indicates that the transfer is in a fiduciary capacity (such as security endorsement) and what are the restrictions that have the trustee to dispose of or encumber Titles transferred to the issuer must be notified as appropriate.
D) credits and titles endorsable by notifying the account debtor or issuer of certificates indicating the corresponding terms of the trust agreement establishing the Trust imperfect domain limitations.
E) with respect to other property, including bearer securities and cash, which is made by delivery against receipt to the trustee where the trustee declares that the trust receipt identifying the trust to which they belong. In the case of personal property is presumed to belong to the estate of the trustee.
Another distinctive feature is that the trust may vary as a simple deposit effective on the date of delivery to the recipient, or a complex web of related contracts on behalf of many beneficiaries. FINANCIAL TRUST
.- A trust agreement in which the trustee is a financial institution or a company specially licensed by the National Securities Commission to act as financial trustee and beneficiaries are the holders of certificates of ownership interest fiduciary or debentures secured by the property so transmitted. Participation certificates and debt securities will be considered and may be offered to the public (art. 19 º). -
The subjects of this contract on the one hand the Trust is an entity authorized to operate by the National Executive and the other Beneficiaries are those holders of certificates of participation in the trust domain or debt securities. Participation certificates are secured by the trust property, and have the special feature that these securities may be offered to the public. Where appropriate conditions will be controlled and run by issuing the National Securities Commission (CNV.)
or securitization Securitization is the process by which banks and other financial institutions specifically authorized, may sell assets or fund transforming them into capital market instruments with greater liquidity and less risk. (I refer to the work of Joseph M. Orelle, LL 29.III.95).
This author lists some benefits to be achieved through securitization, in addition to some others that may be mentioned, ...
1 - turn into profit this future cash flows,
2 - lower the cost of corporate financing,
3 - reduce the cost of funds,
4 - to give legal security to the holders of certificates of participation or publicly offered corporate bonds issued for such purposes,
5 - considered Orelle, that such businesses are legal traffic away from the bargaining of individuals, and would be destined to the markets of large financial operations.
consists then, in the conversion of assets frozen creditorios (pledge or mortgage loans, credit from the use of credit cards, or derived from ordinary trade billing, leasing, etc.) In securities susceptible to being placed the investing public entity . Risk scores are required of the entities authorized to operate as trustees, and the repayment is secured by a reflux of funds from loans or shares representing ownership of such claims.
The essence of securitization in the scheme of financial trusts is the possibility that some persons (trustor, settlor) transmitted to others (trust) the domain or trust ownership of certain credits to give them the fiduciariso specified destination in the trust agreement on behalf of certificates of participation (beneficiary) issued by the Trust, such certificates may contain a stake in the trust or debt secured by the trust assets.
Innovation Act allows 24,441 new investment alternatives to the public and can provide liquidity to frozen credit to facilitate not only to collect the money on loan but also the recovery of borrowed funds.
The process of securitization may have the following moments,
1 º) Holding a bank of a contract, the case may be a sale with the balance of money or a mutual, constituting a first mortgage on the property. The Bank becomes a creditor and the buyer is the debtor.
2 º) A mortgagee, gives the credit to a common fund, from passing the mortgage constituted a contract of assignment. He then notifies the account debtor under the provisions of art. CC-1459 Thus the Common Investment Fund is established in the Trust, and the assignor mortgagee is the Founder, and finally, the holders of the shares over the mutual fund will be the beneficiaries (which are indeterminate at the time of establishment of fund) .-
be entered in the Register of Deeds (for Federal Capital, by Dec. 2086-93, ADLA, LIII-D, 4328), which comprise the securitization of the mortgage previously registered to taxing the property as security for the balance of the price or mutual.
3 º) The mutual fund composed of the managing company and the depository in the issuing debt instruments or certificates of participation.
is held in this last step a series of contracts with investors, a new financial agreement on a claim that trust is the ownership of mutual fund. This new contract does not constitute a transfer of the original loan, otherwise we should follow the steps outlined in section 2 º), but reflect the degree of participation and ownership of investors with respect to the global pool of assets that make up the assets, affected Common Investment Fund. Therefore, this contract with investors, is a distinct, autonomous, that creates benefits by the mutual fund and investors partistas share. Unit shares
relationship, then it is among the assets of the mutual fund, not the original credit belongs to the trust property of the fund, which is of all the features of the trust. So the credit, its cause, and the mortgage still belong to the Fund, since it is he who owns the domain trust.
CERTIFICADOSDE PARTICIPATION.
Certificates are autonomous instruments, personal, independent, and lack of collateral, which implements the portion entitled investors in the Common Investment Fund. Therefore not required in connection with the assigned debtors in favor of the common fund of new notifications because there is no transfer of credits. Will be issued by the trustee and the debt securities guaranteed by the trust property may be issued by the fiduciariario or third parties as appropriate. The nominative-endorsable ratified or not, or book.
certificates can be issued global Registration for participation in collective deposit schemes, which are negotiable and divisible (art. 21 º LFV). It allows various classes of certificates of participation with different rights, but each species will be granted equal rights. The issue is divided into series. (Art. 22 º LFV.
BANKRUPTCY TRUSTEE If the amount of trust property should act in accordance with the provisions of the contract, and if there is no contractual provision that the law provides, which must convene a meeting OF HOLDERS OF DEBT to resolve the patterns of administration and liquidation of assets to which end offers several options in the arts. 23 and 23 LFV.
At first, require the disposal of assets that had been separated from the date of bankruptcy.
Following the development of legislation, the liquidator shall summon Board Holders of debt securities of each trust, to be held within sixty days from the date of declaration of bankruptcy, so that ruling on the rules of administration and liquidation of assets.
standards of administration and liquidation of assets, should be about the possibility of separate assets transferred as a unit to another company of equal rotation.
can also be about amend the indenture, the form of alienation of property or unit separately as assets that form, and continued administration of the trust assets until the termination of the trust.
MECHANICS OF THE BOARD OF HOLDERS OF SECURITIES:
Resolutions must be adopted by the affirmative vote of holders of securities representing at least the absolute majority of the securities issued and outstanding, except that it is intended the amendment of the indenture securities, or seeking the remission of debt or the modification of the terms, methods or initial conditions. In this case the quorum is agreements at least two-thirds of the securities issued and outstanding.
If not achieved the required quorum should include a new board which will be held within thirty (30) days from the date fixed for the meeting not completed, and agreements must be adopted by the affirmative vote of holders of securities representing at least the absolute majority of the issued and outstanding securities, except in the case concerned the transfer of assets as a separate unit to another company of equal rotation, or in the case of modification of contracts issuing debt or by reference, changes to term, or change modes the initial periods (a) and b) of Art. 24 º LFV) that the quorum will be the majority agreement of the titles present at the meeting and in paragraph b) that the quorum of agreements shall be two-thirds (2 / 3) of the securities issued and circulation.
TERMINATION OF TRUST.
The trust was extinguished by a - compliance with the term or condition which has been submitted or the maximum legal deadline, b - for the revocation of the settlor in the event that this had been reserved that right, c - for any other reason provided for in the contract, d - by the occurrence of any of the grounds provided for in the will that gave home to the trust, and - before the bankruptcy trustee when the trustee does not have sufficient funds to meet the obligations of the trust, puts an end to the trust after its liquidation relevant (articles 16, 23, and 24 of the LFV.
DESTINATION OF GOODS.
The trustee must give the trustee trust property or its successors, providing the tools and contributing to the registry entries that apply (art. 26 º LFV.
RULES ISSUED BY THE NATIONAL MORTGAGE BANK FOR THE IMPLEMENTATION
Banco Hipotecario Nacional (BHN) created the "Mortgage Securitization Operative, Module I, issued by the Management of Development of Banco Hipotecario Nacional ".
coexist within this system three main actors, which are 1 - the governing body, 2 - companies that originators must be approved by the governing body that granted mortgage loans in accordance with the governing regulated, and 3 - portfolio managers, who may be the companies themselves originators or third parties authorized by the governing body.
would be created a line of credit to finance ventures that aim at building partnerships with private banks or mixed or officers, for the placement and management of assets through the securitization of mortgages obtained.
The governing body grants a loan originator to a company or financial institution to implement a previously approved undertaking. Once implemented the project's originator company will begin offering for sale the real property of the enterprise financed mortgage, and within the agreed period, which may not be less than 12 months after the approval of the venture, the originator forward to BHN mortgage loan portfolio of mortgage loans portfolio, for which the BHN pay 100% of the residual capital in the portfolios of receivables to the transfer. BHN complied with the above will begin issuing debt securities that are secured by portfolios acquired mortgage.
(see "Application and problems of the trust agreement," Sebastian J. Bagley, LL 8.II.96 and "Private Law Reforms", Law 24,441, of Highton - Mosset Iturraspe - Paolantonio - Rivera)
Reviews
receiving institution:
Along with the characters presented by this business complex doctrine identifies two critical points
a) Lack of Fullness (art. 17 of Law No. 24,441), which is an immediate consequence of the nature of imperfect mastery. But agreeing this figure with the Consumer Protection Act (Law 24,240) should be noted that one of the greatest fears of the potential user (beneficiary / settlor or beneficiary residual) as a question whether is it possible to restrict an absolute way the power legal provision? Sebastian Vidal
Aurnague, discusses Article 17 of Law No. 24,441 (LFV), indicating that it is vague in its wording, and that it is clear exactly what assumptions to understand.
Indeed, although the trustee has, in principle, freedom of disposition of property received in trust, it provides the possibility to limit this power. (Id. Art 1474 CU). But it is unclear which of them understand this restriction on the transferability of the domain.
We meet the beneficiaries can be consumers. In this sense, consumers are potential beneficiaries of the trust contracts, where the sale of property, brand new, lots of land destined for housing, movable-recordable or not, where these are acquired or incorporated by this good title to their assets. Transmission made by the trustee to the beneficiary, requires of certainty, which is questioned. Are becoming more common trust estate ventures, such as construction of buildings collectively, for industrial systems. So, this limitation on the powers of an affects directly, since that would take the character of third-party purchasers in good faith.
also points to the same operator of law, that art. 17 of Law 24,441, is liable to two interpretations:
(...) a) A first reading comprehension of three causes of unavailability: i) because the act of alienation contradicts the purpose of the trust; ii) because the trust expressly prohibits absolutely alienation iii) because it imposes additional requirement of consent of the settlor or beneiciario, and this is not met.
understand that this position is not the most appropriate because the transferor clear, not a mandate, but the figure exceeds the mandate to do so as a rule revocable, ergo, regardless of the possibility of arranging for the recipient receives the thing . Even serious, or disposing of it, for the implementation of the object. It is incomprehensible and achieve that end by limiting their ability to dispose of the thing. Even, one might go so far as to consider that such restriction on the transfer, negotiation exclude with beneficiaries, that the contract they are designated as "purchasers for value", since I could not ever have the disposal of the thing, not just the transmission of the beneficiaries, which only would agree to it free of charge .
I think it's possible the transfer or assignment of the rights given to beneficiaries, consideration even if the condition to become beneficiaries is precisely to be the acquirer, and must meet that one quality, and no other. Ie that the beneficiary is to be a purchaser for value. Whenever the spirit of the legislator was the real estate development of the institution, under a law of housing finance.
This would confirm even that the beneficiary would contribute to the Trust, to offset the expenses to be given, since it must amortize the costs for improvements and maintenance of the thing.
The beneficiary, purchaser would receive full ownership of part of an owner imperfect, with the difficulties that are noted above, which do not undermine the purposes of the business. Whenever you entrust the settlor transmission just for the benefit of the beneficiaries, be they third parties or expressly designated in the contract that is being accessed.
Another question related to this, it is whether can the Trust encumber the property with real rights, affecting the interests of beneficiaries, and levying a risk creditorio the thing that does not belong at all? An attempt to answer may be that with the consent of the beneficiaries, the Trust could affect this rule has imperfect. Even this would be refined with the consent of the beneficiaries, who shall be bound to ratify the charge despite the well, an expressly to accept the trust and receive the good hands of this, the act that implements it. In this case, expressed in the public document that is received well, becoming the beneficiary liable to the same extent and condition I had the trustee.
The unification project in the art. 1474, provided however that the trustee has the authority to dispose of or encumber the property without fideicomitios this is necessary for the consent of the settlor, the beneficiary or trustee. This settles the controversy raised, but added that the contract can provide for limitations on these powers, but they are not enforceable against third parties in good faith, (for the benefit of the beneficiaries for consideration), unless they are registered in the records for recordable things, without prejudice to the rights against the trustee.
b) can also be understood in this article 17, which comprise only two of the cases referred to, and thereby barred the trustee is able to exclude completely the power of alienation of trust. "
The difference in interpretation arises as to consider that the last sentence of the article (" unless otherwise agreed), concerns the power to dispose or encumber the trust property itself, or the requirement of consent the settlor or beneficiary. I think this is an acceptable interpretation. Sebastian Vidal
Aurnague only valid the first of the interpretations based on the literal hermeneutic text. Affirming that the position is not reckless to admit a "domain not transferable", as it is addressed in the draft amendments of the Civil Code of the Chamber of Deputies, defined as an absolute restriction on the owner's dispositive power of the thing clear that this project limits Institute in duration to one year, but would normally be extended to the case of trust, if we recognize from the real right domain of this nature. -
b) Lack of perpetuity (art. 74 of Law No. 24,441): The old article 2670 of the Code. Civil said: "Revoking rule retroactively, the former owner is allowed to take the property free of all charges, easements or mortgages which would have taxed the dispossessed owner or third owner, but is obliged to respect the administrative acts. I would have done. "Art. 74 of Law No. 24,441, added a second paragraph that states:" Excepted acts of disposition made by the trustee in accordance with the provisions of special legislation. "Undoubtedly
if the acts are in contravention of the limitations of art. 17, causes the annulment of the act and not revoked, but if the violation of any of those clauses has been imposed as a condition subsequent domain, besides the act be null, is revocable.
This confirms the old view that it considered applied art. 2670 Coll. Civil control both revocable trust as the domain.
paragraph added by Law No. 24,441, has introduced a significant exception to the principle that the retroactive cancellation of the domain allows us to recover the property "free of all charges, even if it is held by private successors. Indeed, if the trust domain, the domain reversal will not, in principle, retroactive acts of provision have been firm, unless the trustee has taken a provision against the provisions of the contract. Thus, reversed the domain should return it to the same legal status was at the time of creation of the trust.
In the Civil Code regime is necessary that the cancellation clauses in the domain of the revocable trust agreement is established in Title transmitter. Thus, the note to art. 2663 reads: "These clauses revocation, must be in the public instrument by which the sale is made, can not fail to be known by the third party purchaser, as consisting of the same instrument that transmits it."
is, as the termination clause must appear in the title to be effective against third parties and, therefore, they are in a position to know. "Decisional If the event was agreed at a ceremony given by deed accessory (Art. 1184 inc. 10 of the Code. Civil), to produce effects against third parties should be recorded that act in primitive writing accessory. Consequently, if the title includes the existence of a limitation or restriction on the right to have explicit, explicit a condition subsequent, or within explicit decisional, nullity or revocation operate against third parties who can not claim ignorance, especially by application Art. 23 of Law 17,801 "No notary or public official may authorize documents of transfer, creation, modification or transfer of interests in land, without having to view the title enrolled in the registry ...".
PRACTICAL WORK.
practical work must be submitted no later than the second followed by one in which they gave the agenda.
Failure to submit the job disapproval of the mean .
CASES FOR ANALYSIS
Discuss these business variables, and please determine first whether either business of the Trust, and second in that way. Make a development, as their knowledge. I pray for their development using all available literature.
TRUST FOR THE CONSTRUCTION AND SALE OF BUILDING.
A construction company is quite indebted a good project to construct a building, but does not have sufficient capital or to finance the purchase of land and construction, or has reasonable cups credit to develop the project. Meet the owner of a building to be demolished at the intersection of Chile and Lima, DCF, who would be willing to swap the land for a building floor. SA Inter-Bank considers the project profitable, but given the precarious financial situation of the company is not willing to fund .-
TRUST SHAREHOLDERS AGREEMENT. 19,550
Act presumes that stock commercial companies are not personal basis and prohibits restrictions on the transfer of absolute actions, however, reality shows, especially in the case of SMEs, given that the individual shareholder is crucial to incorporate other shareholder, society or approves investment projects that arise. Thus, in companies with multiple shareholders, may be performed related shareholder agreements to ensure continuity of certain projects.
In the given case, the firm PEREYRA & CIA. SA, which comprises six shareholders, involving as follows: M. Pereyra 48% of the shares, P. Perez with 12%. Maria Perez de Pereyra with 5%, Julian Marias, Jorge Luis Borges, and Alberto Alvarez, each to 8.33%. The firm, given the past tequila effect, was in a delicate financial situation. M. Perez Perez, wants to develop a profound re-engineering plan of the company and raising capital to address the implementation of interprovincial route they were awarded, by which would link the provinces of Córdoba, Santa Fe, and Entre Rios, through agroindustrial a cord of great interest for all three. To build the firm will require an investment plan, counting as the only future toll income, however the banks surveyed do not award credit directly, even with intensive management carried Interprovincial by the commission, custody and guarantor of the project. A foreign bank believed the project cost, which estimates a cost of U $ S 23,000,000. - The three shareholders holding 25% of capital decide to support the project for which the shareholder instituted Maria Perez de Perez - author of the project, as Trustee, and is the given in three separate batches of home which is constituted as trustee beneficiary.
FIRST QUESTION: intra-corporate relations.
What powers will the Trust?
Is there any legal prohibition to exercise such a function?
What obligations will the Trust?
SECOND QUESTION: Describe and develop the business in accordance with the general guidelines described above.
BIBLIOGRAPHY:
An introduction to the Trust by Fernando Mantilla, LL 21. III.95.
The Trust in Law 24,441, by José María Orelle, LL 29.III.95.
Guarantee Trust or Trust, by Mary Acquarone, LL 7.IV.95.
Trusts, "Leasing", mortgage and other aspects of the Law 24,441, by Elijah P. Guastavino, LL 18. IV. 95.
Law 24,441 of funding and housing construction and reform the Civil and Commercial Codes. By Carlos Ghersi. LL 24.IV.95
Trust. Apreciadiones on the new rules, by Edward L. Clusellas Gregorini, LL 5. XII.95
.- Implementation and Issues of the trust agreement by Sebastian J. Bagley, LL 8.II.96 .- Amendments to the right would
Private - Law 24,441, of Highton - Mosset Iturraspe - Paolantonio - Rivera, Editorial Rubinzal - Culzoni Editors ed. VI.1995 .-
Kiper, Domain Legal System Trust, La Ley, Buenos Aires, 1989.). 
appears this
Introduction institution in the art. Civil Code 2662, as a form of revocable domain. Characterized and analyzed within the framework of property rights.
While it is a creation of Roman law, as expressed in the institutes of the a) Creditor Trust cum contracta, which was intended to ensure the creditor the payment of a debt by delivering the property of one thing, it would be restored to cash payment. Currently applies a modernized version of it in the "Trust Collateral" and b) in the Fiducia cum amico contracta, which unlike the previous one, the ceremony was constituted in the interest of the settlor. So the trust gave the trustee custody and / or administration, but against any third party outside the relationship, was the owner of the property, staying hidden convention limiting their powers.
As where the figure reaches a higher evolution is in the common law has come to be known as "trust or confidence. This is an unfolding of the "legal ownership" at the top of the "trustee" and the equity ownership or "equity" in the beneficiary's considered true owner in the scheme that complements the legal equality.
Law 24,441, known as Housing Finance, Title I, Chapter I, entered the trust business, as new form bargaining. Trying to change an institution that had shallow roots in our law.
the words of the legislators, in the explanatory memorandum of the same, the object of the institution is:
"The trust must play a central role in the housing mortgage finance, as receiver of credit rights in the mortgage instrumented , which together with the actual rights guaranteed circulation of public offering securities, channeling the savings of the community through the procedures usually called securitization and securitization. "
thus introducing a new role, and rules that do not have to look at a unique business, but a financial venture.
First place as an instrument of borrower credit financing mortgage secured for housing. Second attempt to create a business bank conviction stimulus to the issuance of mortgage bonds, and channeling public savings.
Third invite financial institutions to the creation of the securitization markets or securitization of mortgage loans secured by borrowers, mortgage and varied.
Mortgage bonds are mortgage-backed securities, mortgages for first grade and expressly consented to the act of setting up the mortgage. Missing was the regulatory
of the institution to introduce precise profiles of the rights and obligations of persons involved in the act in terms of rejuvenating the system preterintención bargaining housing, introducing a new contract - bargaining.
was an institution far into disuse in our country, but in true Anglo-Saxon countries are financing and guarantee schemes managed by the Trust's.
The legislative history that have served as a source of our current laws are the Commercial Code of the Republic of Colombia, The General Law of Credit Titles and Operations of the United Mexican States, Law 17/1941 of the Republic Panama, the Civil Code of Québec (Canada) promulgated on 18 December 1991 and Law 19,301 of the Republic of Chile.
currently being developed significantly the land trust (vg. EIDICO SA), through the development of urban complexes, but their development is more important inter-employer as security for loans or overhauling operations. Financially, as well as a way of generating cash to securitization of invoices, bills of credit or tolls, or inserted uniquely in the market for securities, by issuing bonds, listed in stock market, and which are secured by receivables arising from invoices, credit card balances, from the sale of appliances in large chain stores or mass consumption (eg Garbarino case, Coto, etc.), or trusts agriculture, for which the tenant or owner of a field gives a trustee a fiduciary to harvest and in return make a profit, the marketing of their grain.
What is trust? Important doctrinal
have issued opinions on the most appropriate definition of this new legal business of our law,
Carregal Mario has said that "Through this transaction the debtor an obligation transfers the ownership of a property owned by a third party to the effect that in the event of a breach of the obligation breached to the concurrence of the credit owed, thus canceling all or part of the unpaid debt. Thus, the lender has the guarantee that your loan will be paid by the debtor or, if this does not meet its obligation, by the third party has received an asset of the debtor with instructions to cancel the debt occurred affecting the sale of such asset. "
The same author, in his book THE TRUST, legal regulation and practical possibility, he said" ... that the essence of the trust or trust is the transfer pactum property by way of trust and may be subject to the same all goods, not just the things to also cover all subject to value intangible objects (art. 2312 CC), within the limits and subject to the terms provided to fulfill the purpose intended. (Trust, Leasing, Mortgage notes and other aspects of the Law 24,441 - 18.04.1995 LL). "
Guillermo Borda Meanwhile, in his manual of real rights of the domain is Trust," as one business in which the constituent (transferring) is proposed to transfer the domain to a person, but for various reasons, do not want it now, then uses a broker to whom you transfer domain, with the task of relaying it to the final destination to be met over time or a certain condition, the domain that holds the intermediary is called a trustee. "
The Law Trust 24,441:
The standard definition given to this contract part from the Section 1, which reads "when a person will trust (settlor) to transmit the specific property trust domain to another person (trustee), who is obliged to exercise the benefit of who is designated in the contract (RECIPIENT) and transmit it to the fulfillment of a term or condition of the settlor, the beneficiary or a third party. "
As a first premise that appears is the transmission domain of property for another, "but imperfectly and revocable"
Trust reform project:
The draft Unified Code Civil and Commercial Procedure, rule in the art. 1452 "On the indenture trustee or the trustee undertakes to transfer the ownership of assets to the trustee, who undertakes to exercise the benefit of the beneficiary designated in the contract, and to pass upon a term or condition of the trustee. "
SUBJECT OF THE CONTRACT.
Three are, in principle, subject of the trust. The settlor, the trustee and the beneficiary. Although it may be agreed upon the existence of a trustee.
FIDUCIANTE: es el transmitente de los bienes del dominio revocable. Titular dominial de los bienes.
Debe tener capacidad para disponer y administrar sus bienes.
FIDUCIARIO: es quien recibe los bienes y se obliga a ejercer el dominio en beneficio del beneficiario, y a transmitírselo al beneficiario y/o el fiduciante y/o el fideicomisario o a sus sucesores o a un tercero, al cumplimiento del plazo o condición resolutoria. Debe ser capaz para administrar sus bienes y para ser mandatario.
Es el titular del patrimonio fideicomitido durante la vigencia del fideicomiso. Es el propietario de los bienes fideicomitidos, el acreedor y deudor de los creditos y obligaciones que integran el patrimonio fideicomitido.
Esta titularidad fiduciaria shall have effect against third parties that meet the formalities of transfer of title (in the case of things) or the ownership of rights (in the case of goods) payable in accordance with the nature of the assets transferred in trust (art. 12 º).
may be a natural or legal person to act as financial authority authorized to operate as such by the law of financial institutions and legal persons authorized by the Executive.
Of the latter, it appears that require state recognition to work, granted only in cases of legal or financial institutions to make public offering to act as trustees. Must be approved by the respective law, and by the National Securities Commission. For
who are natural persons or legal persons who DO NOT public offering to act as trustees do not require any registration to be recognized by more than necessary for its operation.
The trustee must act in accordance with the law or the contract with the prudence and diligence of one who acts on the basis of trust and good faith. As to the scope of good faith and confidence required, is feared to be a specific conceptualisation for this, since the instrumentation with respect to beneficiaries or the trustees would be through contracts accession, predisposed clauses, where a party would be the weakest.
the trustee is entitled to remuneration and reimbursement of expenses, which must be agreed by contract, but the LFV authorizes judicial fixing it (art. 8 º). But shall not be held in trust, both wages and expenses as the assets of the trust is constituted for other purposes, and has served the fiduciary powers it.
The trustee has the power to dispose of trust assets, and the exercise of actions to defend them. No authorization is required to Trustor and / or beneficiary, unless otherwise agreed.
Trustee when performing acts against third parties on behalf of the trust, must finds that it does fiduciary trust account, and if the third party's request, demonstrate ability to perform the act displaying a state property or heritage statement trust property (for that is the guarantee autonomous patrimony common to all creditors of the trust and therefore an element in determining the risk of contracting).
Beneficiary: The final recipient of the trust property, upon completion of the term or condition are subject to the trust domain. Their situation is analogous to that of the recipient. But Clearly it is their right to receive full ownership of the assets constituting the trust estate that may not be the same as to constitute a trust there. Must have ability to hire and manage.
TRUSTEE BENEFICIARY RELATIONS: They are usually the same person, but they may be different people. The Committee on Amendments to the Civil Code (Decree 468/92) provides that the trustee is the residual beneficiary, and if they do not accept or come into existence is attributed as the beneficiary at the same settlor.
may be individuals or legal entities. The beneficiary must be given or be subject to subsequent determination (Art. 2 Law 24.441) must be reported data allowing their identification in the act of the constitution.
Legal status: (In the Civil Code and Law 24.441).
The institution is legislated by Title VII, under the name THE IMPERFECT DOMAIN (located on the grounds of property rights) with amendments introduced by Law 24,441. - Domain
revocable His character, arises from the harmonious play of arts. 1507, 2661, and 2662 (with the reform of Law No. 24,441) of the CC of what follows is an imperfect mastery over a real right or revocable trust one person over a thing itself, movable or immovable, or the reserved by the owner perfect only one thing that alienates your domain useful. Is the domain that is acquired by virtue of a trust established by contract or by will, and is subject to last only until the termination of the trust, for the purpose of delivering the thing where it belongs, under the contract, the will or the law (art. 73 º Law 24.441).
The domain trust is revocable. It combines this with the domain revocable legislated by the art. CC 2663 and is one that has been passed under a revocable at will that has passed, or when the current owner may be deprived of property by a case from its title. Also as noted above, This contract is legislated under the provisions governing the debentures of corporations, art. 338 of the Companies Act (L.19550.
Characters of the contract:
TYPICAL or NOMINEE: Since the enactment of Law 24,441, the business was incorporated into the classification of typical contracts and nominees.
PLURILATERAL: There is a contractual relationship established between the Trustor, the Ficudciario, the Beneficiary and the Trustee. A person can be settlor, beneficiary and trustee.
(Transmits the domain revocable)
A person can not be sole trustee and settlor or beneficiary of the trust, but if there are multiple trust one of them may not be the sole beneficiary.
The trustee has a duty to exercise the real right over the good purpose of the trust, in the agreed form and give the intended final destination.
CONSENSUS: The contract establishing the trust is a consensual contract is perfected by mere consent solo or party, but according to the rules of the Civil Code, requires a real law of evidence and modes, the title is the trust agreement, are the traditional modes (requires the effective transfer of the trust assets to the settlor Trust - art. 1 º) and registration of the Trust for the acquisition to be perfect against all erga omnes (art. 2505, Cod. Civil).
When trust assets are things from the standpoint of the real right of ownership, one could say that:
a) The trustee does not have any real right, can only perform certain actions on behalf of the trust assets to the omission of act of the trustee (art. 18 º) .-
b) The trustee has a stranglehold on these things imperfect, imperfection from two limitations:
B - 1) As to the object can only manage and dispose of things into trust for fulfill the purposes of the trust and under the limitations and restrictions established in the contract (art. 17 º).
B - 2) As to time: the end of the trust must pass the trust must convey full ownership to the trustee (art. 1 in fine).
Necessarily, there is a coexistence of real link and obligational. The trustee has not only a personal and credit rights, which is to obtain compliance with the obligation assumed by the trustee, as this owner of the domain or other law passed by the trustee, who receives full power.
PAYMENT: In general, the agreement is for an end to economic profit, as was intended by our lawmakers and manifested in the preamble of the Law 24,441, however in some cases can be free, as in the case of the provisions and provisions for his own inability also known as wills for life, which are provisions that establish a person for the event that any condition suffer a disability, and in anticipation of this, takes the form of the trust agreement for ensure a dignified life. (For more this suggests the note reading ¨ The trust and the underlying legal relationship, published in The Law of 26.II.96), or exercised a sort of curator of unhealthy and disabled persons, in which the trustee curator property of the insane, to procure their sustenance and care.
Switch: It follows from the essence of commutative character with perfectly bilateral obligations.
Instant Execution: The contract is concluded ab initio, since its conclusion, as required by law. Thus the mere consent of the parties perfect. FORMAL
: In our law, as ruled by art. CC 1884 should be an instrument establishing this public property right relating to real estate or registrable property, while in the field of credit rights, are governed by the law of circulation, or a non-formal.
INDEPENDENT HERITAGE: The Heritage of the parties to the contract did not undergo any addition or modification, other than integrating heritage Trustor and Trustee. This is a CAPITAL OF ALLOCATION.
UNIQUENESS OF BUSINESS: Following on this point Farina, argues that the business trust must be understood as a unitary concept. This position was held prior to the enactment of Law 24,441, and the text confirms this position, since no is a superposition of two opposite contracts, but it is a single contract. There is one business that determines an inseparable link between the actual act of transferring the right and the relationship obligational to do some exercise that right. RELATED
: The plurality of recipients, and their relationship with the trustee, and in turn the relationship this would have with the trustor, creates a binding contract for the cause that gives rise, so are related to each other to spread their effects jointly, on the whole network of contracts and contractual responsibility on trustor and trustee in respect of the rights of the beneficiaries and trustees. This adds to the character Business uniqueness assigned Farina. OBJECT OF THE CONTRACT
Usually it is a transfer of ownership of their own tradition of his for purchase, gift, inheritance or bequest, designed to last longer. This would be a business unit based on a structural unit of the legal relations which arise from real and obligational. That relationship or real right required, according to the rules of the Civil Code. Kiper has argued that''It is the same, characteristic of the domain trust (section 2662, Code. Civ): Domain trust is that trust is acquired by a singular, subject to last only until the completion of a solving condition or until the expiration decisive, for the purpose of restoring the thing. ''(Kiper, Domain Legal System Trust, La Ley, Buenos Aires, 1989.).
The contract is the establishment of autonomous assets, for the sake of a predetermined end, consideration or not, and will end when transmitted or revocable trust rule upon completion of the resolving condition or term. Contains, inter alia, an obligation to the trustor and trustee for the beneficiary or trustee. Given
your property, plural purposes for which it was conceived, and its use in countries where instrument was adopted as financial and real estate businesses as a tool for collection of savings, and this way they set up companies or investment funds.
This contract is not perfected in a real contract of those who are improving the delivery of the thing (deposit, mutual loan, grant manual, annuities), but in a consensual contract perfect.
CONTENT OF CONTRACT (4 º and 7 º LFV) The trust agreement to fill its content requires the following elements or requirements:
A) an autonomous patrimony (separate or independent from the assets of each party involved in the trust), which is:
1 - Individualization of goods under the contract. The determination must be certain and definite. If possible does not lead to the identification of the property at the time of the contract should include the description of the requirements and characteristics to be met by assets.
2 - The determination of how other property shall be incorporated into the trust.
B) affect performance of a given object (in a similar way, the assets of a company is concerned to fulfill its corporate purpose)
C) For a limited time period can not exceed 30 years or life recipient's incapacitated.
3 - The term or condition subject to which trust domain, which can never extend beyond the thirty years since its establishment, unless the beneficiary is incompetent, in which case may last until death or the cessation of his disability. D) The contract is an imperfect head domain trust
D.1.) Regarding the subject: You can only manage and dispose of things into trust to fulfill the purpose of the trust and under the limitations and restrictions established in the contract (art. 17 º) d.2. ) In terms of time: the end of the trust the trustee must convey the full propidead the trustee (art. 1 in fine).
4 - You must enter the destination of the goods will the end of the contract.
5 - Must contain the rights and obligations of the trustee and how to replace it if it ceased production in its functions.
6 - Can not contain, under penalty of absolute nullity, invalid any agreement to waive the obligation of accountability, or the negligence or fraud that may be incurred or dependents own trustee, or the prohibition to acquire yes definitely trust assets.
Thus, at least, the Trust is accountable once a year (art. 7 in fine).
The contract must be read as completely as possible to prevent the trustee is unable to act due to lack of instructions or conflicting parties. Should be read as documentary credit contracts where the performance of banks involved is almost automatic.
types of security:
The trust agreement itself it is a contract that is perfected by mere consent, requires the title and how to produce their effects on the rights of the trustee and separate assets of the trustee and trustor exempt from individual or collective action by creditors of each other.
It follows that the trustee is the holder of fideiciomitido assets during the term of the trust. He is the owner of the trust assets, the creditor and debtor of the debts and obligations comprising the trust property. The trust property is independent from that of the trustee (art. 16 º. This ownership trust shall have effect against third parties as to compliance with the formalities of transfer of title (in the case of things) or the ownership of rights (in the case of goods) payable according to the nature of the transferred assets in trust (art. 12. So with regard to:
A) property will fit into the Land Register the title deed, executed by the Trustor and the Trustee and detailing the terms of the contract establishing the trust of the patterns arising from imperfect domain Trust in the property (art. 13 º).
B) registrable property shall be recorded in the registry for domain translational document or record the transfer of the domain, depending on whether the case indicating that it is a trust domain and, perhaps, identifying the trust or its restrictions, in a manner similar to that used for registering pledges or liens on such property (art. 13 º).
C) for the Shares and Securities Nominee, the transfer is by endorsement, which indicates that the transfer is in a fiduciary capacity (such as security endorsement) and what are the restrictions that have the trustee to dispose of or encumber Titles transferred to the issuer must be notified as appropriate.
D) credits and titles endorsable by notifying the account debtor or issuer of certificates indicating the corresponding terms of the trust agreement establishing the Trust imperfect domain limitations.
E) with respect to other property, including bearer securities and cash, which is made by delivery against receipt to the trustee where the trustee declares that the trust receipt identifying the trust to which they belong. In the case of personal property is presumed to belong to the estate of the trustee.
Another distinctive feature is that the trust may vary as a simple deposit effective on the date of delivery to the recipient, or a complex web of related contracts on behalf of many beneficiaries. FINANCIAL TRUST
.- A trust agreement in which the trustee is a financial institution or a company specially licensed by the National Securities Commission to act as financial trustee and beneficiaries are the holders of certificates of ownership interest fiduciary or debentures secured by the property so transmitted. Participation certificates and debt securities will be considered and may be offered to the public (art. 19 º). -
The subjects of this contract on the one hand the Trust is an entity authorized to operate by the National Executive and the other Beneficiaries are those holders of certificates of participation in the trust domain or debt securities. Participation certificates are secured by the trust property, and have the special feature that these securities may be offered to the public. Where appropriate conditions will be controlled and run by issuing the National Securities Commission (CNV.)
or securitization Securitization is the process by which banks and other financial institutions specifically authorized, may sell assets or fund transforming them into capital market instruments with greater liquidity and less risk. (I refer to the work of Joseph M. Orelle, LL 29.III.95).
This author lists some benefits to be achieved through securitization, in addition to some others that may be mentioned, ...
1 - turn into profit this future cash flows,
2 - lower the cost of corporate financing,
3 - reduce the cost of funds,
4 - to give legal security to the holders of certificates of participation or publicly offered corporate bonds issued for such purposes,
5 - considered Orelle, that such businesses are legal traffic away from the bargaining of individuals, and would be destined to the markets of large financial operations.
consists then, in the conversion of assets frozen creditorios (pledge or mortgage loans, credit from the use of credit cards, or derived from ordinary trade billing, leasing, etc.) In securities susceptible to being placed the investing public entity . Risk scores are required of the entities authorized to operate as trustees, and the repayment is secured by a reflux of funds from loans or shares representing ownership of such claims.
The essence of securitization in the scheme of financial trusts is the possibility that some persons (trustor, settlor) transmitted to others (trust) the domain or trust ownership of certain credits to give them the fiduciariso specified destination in the trust agreement on behalf of certificates of participation (beneficiary) issued by the Trust, such certificates may contain a stake in the trust or debt secured by the trust assets.
Innovation Act allows 24,441 new investment alternatives to the public and can provide liquidity to frozen credit to facilitate not only to collect the money on loan but also the recovery of borrowed funds.
The process of securitization may have the following moments,
1 º) Holding a bank of a contract, the case may be a sale with the balance of money or a mutual, constituting a first mortgage on the property. The Bank becomes a creditor and the buyer is the debtor.
2 º) A mortgagee, gives the credit to a common fund, from passing the mortgage constituted a contract of assignment. He then notifies the account debtor under the provisions of art. CC-1459 Thus the Common Investment Fund is established in the Trust, and the assignor mortgagee is the Founder, and finally, the holders of the shares over the mutual fund will be the beneficiaries (which are indeterminate at the time of establishment of fund) .-
be entered in the Register of Deeds (for Federal Capital, by Dec. 2086-93, ADLA, LIII-D, 4328), which comprise the securitization of the mortgage previously registered to taxing the property as security for the balance of the price or mutual.
3 º) The mutual fund composed of the managing company and the depository in the issuing debt instruments or certificates of participation.
is held in this last step a series of contracts with investors, a new financial agreement on a claim that trust is the ownership of mutual fund. This new contract does not constitute a transfer of the original loan, otherwise we should follow the steps outlined in section 2 º), but reflect the degree of participation and ownership of investors with respect to the global pool of assets that make up the assets, affected Common Investment Fund. Therefore, this contract with investors, is a distinct, autonomous, that creates benefits by the mutual fund and investors partistas share. Unit shares
relationship, then it is among the assets of the mutual fund, not the original credit belongs to the trust property of the fund, which is of all the features of the trust. So the credit, its cause, and the mortgage still belong to the Fund, since it is he who owns the domain trust.
CERTIFICADOSDE PARTICIPATION.
Certificates are autonomous instruments, personal, independent, and lack of collateral, which implements the portion entitled investors in the Common Investment Fund. Therefore not required in connection with the assigned debtors in favor of the common fund of new notifications because there is no transfer of credits. Will be issued by the trustee and the debt securities guaranteed by the trust property may be issued by the fiduciariario or third parties as appropriate. The nominative-endorsable ratified or not, or book.
certificates can be issued global Registration for participation in collective deposit schemes, which are negotiable and divisible (art. 21 º LFV). It allows various classes of certificates of participation with different rights, but each species will be granted equal rights. The issue is divided into series. (Art. 22 º LFV.
BANKRUPTCY TRUSTEE If the amount of trust property should act in accordance with the provisions of the contract, and if there is no contractual provision that the law provides, which must convene a meeting OF HOLDERS OF DEBT to resolve the patterns of administration and liquidation of assets to which end offers several options in the arts. 23 and 23 LFV.
At first, require the disposal of assets that had been separated from the date of bankruptcy.
Following the development of legislation, the liquidator shall summon Board Holders of debt securities of each trust, to be held within sixty days from the date of declaration of bankruptcy, so that ruling on the rules of administration and liquidation of assets.
standards of administration and liquidation of assets, should be about the possibility of separate assets transferred as a unit to another company of equal rotation.
can also be about amend the indenture, the form of alienation of property or unit separately as assets that form, and continued administration of the trust assets until the termination of the trust.
MECHANICS OF THE BOARD OF HOLDERS OF SECURITIES:
Resolutions must be adopted by the affirmative vote of holders of securities representing at least the absolute majority of the securities issued and outstanding, except that it is intended the amendment of the indenture securities, or seeking the remission of debt or the modification of the terms, methods or initial conditions. In this case the quorum is agreements at least two-thirds of the securities issued and outstanding.
If not achieved the required quorum should include a new board which will be held within thirty (30) days from the date fixed for the meeting not completed, and agreements must be adopted by the affirmative vote of holders of securities representing at least the absolute majority of the issued and outstanding securities, except in the case concerned the transfer of assets as a separate unit to another company of equal rotation, or in the case of modification of contracts issuing debt or by reference, changes to term, or change modes the initial periods (a) and b) of Art. 24 º LFV) that the quorum will be the majority agreement of the titles present at the meeting and in paragraph b) that the quorum of agreements shall be two-thirds (2 / 3) of the securities issued and circulation.
TERMINATION OF TRUST.
The trust was extinguished by a - compliance with the term or condition which has been submitted or the maximum legal deadline, b - for the revocation of the settlor in the event that this had been reserved that right, c - for any other reason provided for in the contract, d - by the occurrence of any of the grounds provided for in the will that gave home to the trust, and - before the bankruptcy trustee when the trustee does not have sufficient funds to meet the obligations of the trust, puts an end to the trust after its liquidation relevant (articles 16, 23, and 24 of the LFV.
DESTINATION OF GOODS.
The trustee must give the trustee trust property or its successors, providing the tools and contributing to the registry entries that apply (art. 26 º LFV.
RULES ISSUED BY THE NATIONAL MORTGAGE BANK FOR THE IMPLEMENTATION
Banco Hipotecario Nacional (BHN) created the "Mortgage Securitization Operative, Module I, issued by the Management of Development of Banco Hipotecario Nacional ".
coexist within this system three main actors, which are 1 - the governing body, 2 - companies that originators must be approved by the governing body that granted mortgage loans in accordance with the governing regulated, and 3 - portfolio managers, who may be the companies themselves originators or third parties authorized by the governing body.
would be created a line of credit to finance ventures that aim at building partnerships with private banks or mixed or officers, for the placement and management of assets through the securitization of mortgages obtained.
The governing body grants a loan originator to a company or financial institution to implement a previously approved undertaking. Once implemented the project's originator company will begin offering for sale the real property of the enterprise financed mortgage, and within the agreed period, which may not be less than 12 months after the approval of the venture, the originator forward to BHN mortgage loan portfolio of mortgage loans portfolio, for which the BHN pay 100% of the residual capital in the portfolios of receivables to the transfer. BHN complied with the above will begin issuing debt securities that are secured by portfolios acquired mortgage.
(see "Application and problems of the trust agreement," Sebastian J. Bagley, LL 8.II.96 and "Private Law Reforms", Law 24,441, of Highton - Mosset Iturraspe - Paolantonio - Rivera)
Reviews
receiving institution:
Along with the characters presented by this business complex doctrine identifies two critical points
a) Lack of Fullness (art. 17 of Law No. 24,441), which is an immediate consequence of the nature of imperfect mastery. But agreeing this figure with the Consumer Protection Act (Law 24,240) should be noted that one of the greatest fears of the potential user (beneficiary / settlor or beneficiary residual) as a question whether is it possible to restrict an absolute way the power legal provision? Sebastian Vidal
Aurnague, discusses Article 17 of Law No. 24,441 (LFV), indicating that it is vague in its wording, and that it is clear exactly what assumptions to understand.
Indeed, although the trustee has, in principle, freedom of disposition of property received in trust, it provides the possibility to limit this power. (Id. Art 1474 CU). But it is unclear which of them understand this restriction on the transferability of the domain.
We meet the beneficiaries can be consumers. In this sense, consumers are potential beneficiaries of the trust contracts, where the sale of property, brand new, lots of land destined for housing, movable-recordable or not, where these are acquired or incorporated by this good title to their assets. Transmission made by the trustee to the beneficiary, requires of certainty, which is questioned. Are becoming more common trust estate ventures, such as construction of buildings collectively, for industrial systems. So, this limitation on the powers of an affects directly, since that would take the character of third-party purchasers in good faith.
also points to the same operator of law, that art. 17 of Law 24,441, is liable to two interpretations:
(...) a) A first reading comprehension of three causes of unavailability: i) because the act of alienation contradicts the purpose of the trust; ii) because the trust expressly prohibits absolutely alienation iii) because it imposes additional requirement of consent of the settlor or beneiciario, and this is not met.
understand that this position is not the most appropriate because the transferor clear, not a mandate, but the figure exceeds the mandate to do so as a rule revocable, ergo, regardless of the possibility of arranging for the recipient receives the thing . Even serious, or disposing of it, for the implementation of the object. It is incomprehensible and achieve that end by limiting their ability to dispose of the thing. Even, one might go so far as to consider that such restriction on the transfer, negotiation exclude with beneficiaries, that the contract they are designated as "purchasers for value", since I could not ever have the disposal of the thing, not just the transmission of the beneficiaries, which only would agree to it free of charge .
I think it's possible the transfer or assignment of the rights given to beneficiaries, consideration even if the condition to become beneficiaries is precisely to be the acquirer, and must meet that one quality, and no other. Ie that the beneficiary is to be a purchaser for value. Whenever the spirit of the legislator was the real estate development of the institution, under a law of housing finance.
This would confirm even that the beneficiary would contribute to the Trust, to offset the expenses to be given, since it must amortize the costs for improvements and maintenance of the thing.
The beneficiary, purchaser would receive full ownership of part of an owner imperfect, with the difficulties that are noted above, which do not undermine the purposes of the business. Whenever you entrust the settlor transmission just for the benefit of the beneficiaries, be they third parties or expressly designated in the contract that is being accessed.
Another question related to this, it is whether can the Trust encumber the property with real rights, affecting the interests of beneficiaries, and levying a risk creditorio the thing that does not belong at all? An attempt to answer may be that with the consent of the beneficiaries, the Trust could affect this rule has imperfect. Even this would be refined with the consent of the beneficiaries, who shall be bound to ratify the charge despite the well, an expressly to accept the trust and receive the good hands of this, the act that implements it. In this case, expressed in the public document that is received well, becoming the beneficiary liable to the same extent and condition I had the trustee.
The unification project in the art. 1474, provided however that the trustee has the authority to dispose of or encumber the property without fideicomitios this is necessary for the consent of the settlor, the beneficiary or trustee. This settles the controversy raised, but added that the contract can provide for limitations on these powers, but they are not enforceable against third parties in good faith, (for the benefit of the beneficiaries for consideration), unless they are registered in the records for recordable things, without prejudice to the rights against the trustee.
b) can also be understood in this article 17, which comprise only two of the cases referred to, and thereby barred the trustee is able to exclude completely the power of alienation of trust. "
The difference in interpretation arises as to consider that the last sentence of the article (" unless otherwise agreed), concerns the power to dispose or encumber the trust property itself, or the requirement of consent the settlor or beneficiary. I think this is an acceptable interpretation. Sebastian Vidal
Aurnague only valid the first of the interpretations based on the literal hermeneutic text. Affirming that the position is not reckless to admit a "domain not transferable", as it is addressed in the draft amendments of the Civil Code of the Chamber of Deputies, defined as an absolute restriction on the owner's dispositive power of the thing clear that this project limits Institute in duration to one year, but would normally be extended to the case of trust, if we recognize from the real right domain of this nature. -
b) Lack of perpetuity (art. 74 of Law No. 24,441): The old article 2670 of the Code. Civil said: "Revoking rule retroactively, the former owner is allowed to take the property free of all charges, easements or mortgages which would have taxed the dispossessed owner or third owner, but is obliged to respect the administrative acts. I would have done. "Art. 74 of Law No. 24,441, added a second paragraph that states:" Excepted acts of disposition made by the trustee in accordance with the provisions of special legislation. "Undoubtedly
if the acts are in contravention of the limitations of art. 17, causes the annulment of the act and not revoked, but if the violation of any of those clauses has been imposed as a condition subsequent domain, besides the act be null, is revocable.
This confirms the old view that it considered applied art. 2670 Coll. Civil control both revocable trust as the domain.
paragraph added by Law No. 24,441, has introduced a significant exception to the principle that the retroactive cancellation of the domain allows us to recover the property "free of all charges, even if it is held by private successors. Indeed, if the trust domain, the domain reversal will not, in principle, retroactive acts of provision have been firm, unless the trustee has taken a provision against the provisions of the contract. Thus, reversed the domain should return it to the same legal status was at the time of creation of the trust.
In the Civil Code regime is necessary that the cancellation clauses in the domain of the revocable trust agreement is established in Title transmitter. Thus, the note to art. 2663 reads: "These clauses revocation, must be in the public instrument by which the sale is made, can not fail to be known by the third party purchaser, as consisting of the same instrument that transmits it."
is, as the termination clause must appear in the title to be effective against third parties and, therefore, they are in a position to know. "Decisional If the event was agreed at a ceremony given by deed accessory (Art. 1184 inc. 10 of the Code. Civil), to produce effects against third parties should be recorded that act in primitive writing accessory. Consequently, if the title includes the existence of a limitation or restriction on the right to have explicit, explicit a condition subsequent, or within explicit decisional, nullity or revocation operate against third parties who can not claim ignorance, especially by application Art. 23 of Law 17,801 "No notary or public official may authorize documents of transfer, creation, modification or transfer of interests in land, without having to view the title enrolled in the registry ...".
PRACTICAL WORK.
practical work must be submitted no later than the second followed by one in which they gave the agenda.
Failure to submit the job disapproval of the mean .
CASES FOR ANALYSIS
Discuss these business variables, and please determine first whether either business of the Trust, and second in that way. Make a development, as their knowledge. I pray for their development using all available literature.
TRUST FOR THE CONSTRUCTION AND SALE OF BUILDING.
A construction company is quite indebted a good project to construct a building, but does not have sufficient capital or to finance the purchase of land and construction, or has reasonable cups credit to develop the project. Meet the owner of a building to be demolished at the intersection of Chile and Lima, DCF, who would be willing to swap the land for a building floor. SA Inter-Bank considers the project profitable, but given the precarious financial situation of the company is not willing to fund .-
TRUST SHAREHOLDERS AGREEMENT. 19,550
Act presumes that stock commercial companies are not personal basis and prohibits restrictions on the transfer of absolute actions, however, reality shows, especially in the case of SMEs, given that the individual shareholder is crucial to incorporate other shareholder, society or approves investment projects that arise. Thus, in companies with multiple shareholders, may be performed related shareholder agreements to ensure continuity of certain projects.
In the given case, the firm PEREYRA & CIA. SA, which comprises six shareholders, involving as follows: M. Pereyra 48% of the shares, P. Perez with 12%. Maria Perez de Pereyra with 5%, Julian Marias, Jorge Luis Borges, and Alberto Alvarez, each to 8.33%. The firm, given the past tequila effect, was in a delicate financial situation. M. Perez Perez, wants to develop a profound re-engineering plan of the company and raising capital to address the implementation of interprovincial route they were awarded, by which would link the provinces of Córdoba, Santa Fe, and Entre Rios, through agroindustrial a cord of great interest for all three. To build the firm will require an investment plan, counting as the only future toll income, however the banks surveyed do not award credit directly, even with intensive management carried Interprovincial by the commission, custody and guarantor of the project. A foreign bank believed the project cost, which estimates a cost of U $ S 23,000,000. - The three shareholders holding 25% of capital decide to support the project for which the shareholder instituted Maria Perez de Perez - author of the project, as Trustee, and is the given in three separate batches of home which is constituted as trustee beneficiary.
FIRST QUESTION: intra-corporate relations.
What powers will the Trust?
Is there any legal prohibition to exercise such a function?
What obligations will the Trust?
SECOND QUESTION: Describe and develop the business in accordance with the general guidelines described above.
BIBLIOGRAPHY:
An introduction to the Trust by Fernando Mantilla, LL 21. III.95.
The Trust in Law 24,441, by José María Orelle, LL 29.III.95.
Guarantee Trust or Trust, by Mary Acquarone, LL 7.IV.95.
Trusts, "Leasing", mortgage and other aspects of the Law 24,441, by Elijah P. Guastavino, LL 18. IV. 95.
Law 24,441 of funding and housing construction and reform the Civil and Commercial Codes. By Carlos Ghersi. LL 24.IV.95
Trust. Apreciadiones on the new rules, by Edward L. Clusellas Gregorini, LL 5. XII.95
.- Implementation and Issues of the trust agreement by Sebastian J. Bagley, LL 8.II.96 .- Amendments to the right would
Private - Law 24,441, of Highton - Mosset Iturraspe - Paolantonio - Rivera, Editorial Rubinzal - Culzoni Editors ed. VI.1995 .-
Kiper, Domain Legal System Trust, La Ley, Buenos Aires, 1989.).
Can You Get Rid Of Renal Cysts
Dear Students.
Examination of the fourth quarter is going to take Thursday 29 November from 10.00 am. , meeting outside the office of bdellium, and from there go to the respective class.
The test will be oral, and symposia. According to the practical work groups for PC. formed.
The method of examination will be indicated in the mail.
hereby amended so the test date indicated for the 30/11 to 29/11.
Thursday, November 8, 2007
Hampton Bay Globe Replacements
ORAL PART FOUR TODAY 8/11/2007 NO SCHOOL LABOR PRACTICE GUIDELINES
Dear Students,
Today for reasons beyond Prof. Dr. Ortega can not teach and her song goes laclos Nov. 22. Nor could any of the teachers cover the class.
Next week Prof. Dr. Nicholas Bordoli going to class on Monday, 12 Leasing, and Thursday next following the normal schedule. Prof. Dr.
Hocsman, will attend the November 19 to address the doubts that pc. may have on the granting and distribution, and raise the issue of Franchising, which would have been without being in the depth that the owner wants.
Have a great weekend. Prof. Dr. Alan
Gobato 
Dear Students,
Today for reasons beyond Prof. Dr. Ortega can not teach and her song goes laclos Nov. 22. Nor could any of the teachers cover the class.
Next week Prof. Dr. Nicholas Bordoli going to class on Monday, 12 Leasing, and Thursday next following the normal schedule. Prof. Dr.
Hocsman, will attend the November 19 to address the doubts that pc. may have on the granting and distribution, and raise the issue of Franchising, which would have been without being in the depth that the owner wants.
Have a great weekend. Prof. Dr. Alan
Gobato
Monday, November 5, 2007
Cervical Lymphadenopathy Jpg
Clinic Monday, 24
Failure
failure "Rodriguez Navarro, Ada A. c / Gil Herrera, Juan s / eviction, ED 167-198 (statutory minimum term, a valid waiver by the lessee). Thursday 13 Location
things. Below. Obligations and rights of the parties. Assignment of the lease and sublocación. (Dr. Nicholas Bordoli).
Failure: CNCivil, Room A, March 1917-1997. "Gomez Prieto, Eladio J. c / Grispan, Jose A.", LL-1997-F-92, ED 177-266 (transfer of location). Monday 17 Location
things. Below. Modes of extinction. Analysis of Law 23,091 of urban locations (as amended by Law No. 24,808). Possibility of contract dollars. (Dr. Julian Ortega)
Bug: "Tarama, Isaac c / Rades Distribuidora SA and Another", CNCivil, Room A, April 7, 1998, LL 1999-D-69, ED 183-51 (price and location).
SECOND DELIVERY PRACTICAL WORK.
WORK CLINICAL PRACTICE GUIDELINES FOR FAILURE. ·
Objectives of work: a) Relate the concepts of the General Theory of Contracts, in particular the implementation and clarification of disputes generated in the failure analysis (EACH one and all together). b) To develop analytical skills, relationship building and the student in resolving any practical issues that arise in daily professional life. c) Evaluate the student's research capabilities in the pursuit and implementation of doctrine and jurisprudence related to the basis of the answers given in the trabajo.Requisitos approval and evaluation guidelines: To approve the work must be met concurrently all of the following requirements: ) The work must be developed by groups composed only by 4 (four), 5 (five) or 6 (six) students, without exception. Not accepted papers presented by groups made up less or more students by indicados.b) Be prepared in leaf craft, A 4 or carta.c) The minimum size should be 8 veneers without máximo.d) The work must based on the legislation, doctrine and jurisprudence applicable, without prejudice to any personal opinions that might desarrollarse.e) Each failure will decompose by internal and external structure
A) EXTERNAL STRUCTURE: There are four: parties. Autos and Vista (description of the cover of the file) Facts: succinct relation of the facts stated by the parties law; correlate of the law applicable to the facts and evidence produced. Resolutive: for what is wrong or resolved.
B) internal structure.
HOLDING: A substantial part you can not miss in a ruling that holds ideologically. . If you miss it, the sentence can be modified. Eg For Massa, the Supreme Court held that the constitutionality of the decrees did not violate the right of ownership. If not resolved it in this way would have been interpreted as the property had been violated.
dictum: Those who found the decisional paragraphs, with case law or doctrine, but that if they are found not influence the operative part, because it does not serve to invalidate or interpret the sentence, but to assist the court to hold ideologicamante the Holding. . F) It shall take particular account in the correction of work, its content, quality and fairness of the preparation, presentation, spelling, writing technique, the sources, the data collected, the appointment of doctrine and jurisprudence and the opinions that are provided in each case. g) Work with concept note and correct if it is considered inadequate will be returned only once to correct the observations formulen.h) failed will work containing portions of texts not cited properly or if obvious similarity with curso.i other practical work) All demonstrations must be grounded in doctrine and jurisprudence.
Thursday, November 1, 2007
Red Scarf Back Pocket
PRACTICAL PRESENTATION OF WORK OF THE THIRD PART
DEAR STUDENTS PRESENT YOU CAN WORK THEM PRACTICAL TO PROFESSOR OF ANY KIND, OR LET YOUR FAULT IN MY NAME ON THE FOLLOWING ADDRESS URUGUAY 485 PISO 3 º BOX G-01 (AT THE COUNTER RECEPTION OF THE ASSOCIATION OF LAWYERS OF BUENOS AIRES) 11 HOURS IN A 17 HS. and WITHIN 24 HOURS. TO BE REMOVED BY ME FILED.
ATTE.
Prof. Dr. Alan Charles Gobat. 
DEAR STUDENTS PRESENT YOU CAN WORK THEM PRACTICAL TO PROFESSOR OF ANY KIND, OR LET YOUR FAULT IN MY NAME ON THE FOLLOWING ADDRESS URUGUAY 485 PISO 3 º BOX G-01 (AT THE COUNTER RECEPTION OF THE ASSOCIATION OF LAWYERS OF BUENOS AIRES) 11 HOURS IN A 17 HS. and WITHIN 24 HOURS. TO BE REMOVED BY ME FILED.
ATTE.
Prof. Dr. Alan Charles Gobat.
Sunday, October 14, 2007
Sinus Infection Ear Tooth
NOTES - THE LOST SON ABSENCE OF ADVOCACY CONTRACT
Adelardi Ana MIRANDA 7.5 7.5
BALDEZARI Romina Mariela
BIGA 0
BLANCO Sonia Maria Belen 8
BOJOSIAN Juan Manuel 0
BORSANI Camila Carla S. 7 Florence 8
BORSANI
CAAMAÑO 6
CATALANO Enrique Martín Inés 0
CUGLIANDOLO DANISA Mary V. 7 Maria Magdalena 0 TEN
DITO Analisa 7
FERNDANDEZ GAMBINALS 2 VP 7
Natalia FERNANDEZ Federico 0 0
FORTUNATO
Frydman Zavaleta Sabrina 8
Marcos GARCIA Jorge Carlos
Gareis 0 0
Gárriz 8
GILABERT Paula Cecilia Mercedes 0
GIMENEZ Marian 7
Tamara Alejandra Valeria GOMEZ GONZALEZ 7
Esteban Miguel 0
GRASSI Carina Paola 6
OVENS Héctor Juan 0
Isasmendi Carla G. 0
KRISCHCAUTZKY Leandro D. 7 0
Mariana LANGA GARCIA LOPEZ MACIAS
Esteban Vanesa 6 7
Sebastian Santiago E. MALDONADO 6
Paula D. Martorana Ariel German MASON
7.5 0
MC. LOUGHLIN Arturo MEDINA Gabriela
Yamila 4 7 7
Luisina MERINO
MILLANESIO Mary F 7
BURGOS Moises M. NUÑEZ 7.5
PALOMO Federico Pascual Fernanda 0 0
PINTOS Celia Carolina 4
POMAR Tomas Alejandro Francisco 7
PORTO Stephen 6 M 7
RAMIREZ ROMERO Diego Luis Martín 8
SALVARO 0
SANTAMARINA HERNANDEZ Maria Clara 9
SEPE
STARASSER Daniel Cayetano 0 0
SYGAL Sebastian Alejandro J. Maximiliano TARZI
7.5 7 Alex 7
TERRAZAS ORDOÑEZ TODARELLO
Alan Mauro 2
TREUTEL Gabriela A. 0
TRONCOSO Manuel Ricardo Velasquez Daniel
6.5 0 7.5 Paula Andrea
VICENTE
YAJANOVECH Sonia Noemí 0
Aruch Lucia Zarate 8 
Adelardi Ana MIRANDA 7.5 7.5
BALDEZARI Romina Mariela
BIGA 0
BLANCO Sonia Maria Belen 8
BOJOSIAN Juan Manuel 0
BORSANI Camila Carla S. 7 Florence 8
BORSANI
CAAMAÑO 6
CATALANO Enrique Martín Inés 0
CUGLIANDOLO DANISA Mary V. 7 Maria Magdalena 0 TEN
DITO Analisa 7
FERNDANDEZ GAMBINALS 2 VP 7
Natalia FERNANDEZ Federico 0 0
FORTUNATO
Frydman Zavaleta Sabrina 8
Marcos GARCIA Jorge Carlos
Gareis 0 0
Gárriz 8
GILABERT Paula Cecilia Mercedes 0
GIMENEZ Marian 7
Tamara Alejandra Valeria GOMEZ GONZALEZ 7
Esteban Miguel 0
GRASSI Carina Paola 6
OVENS Héctor Juan 0
Isasmendi Carla G. 0
KRISCHCAUTZKY Leandro D. 7 0
Mariana LANGA GARCIA LOPEZ MACIAS
Esteban Vanesa 6 7
Sebastian Santiago E. MALDONADO 6
Paula D. Martorana Ariel German MASON
7.5 0
MC. LOUGHLIN Arturo MEDINA Gabriela
Yamila 4 7 7
Luisina MERINO
MILLANESIO Mary F 7
BURGOS Moises M. NUÑEZ 7.5
PALOMO Federico Pascual Fernanda 0 0
PINTOS Celia Carolina 4
POMAR Tomas Alejandro Francisco 7
PORTO Stephen 6 M 7
RAMIREZ ROMERO Diego Luis Martín 8
SALVARO 0
SANTAMARINA HERNANDEZ Maria Clara 9
SEPE
STARASSER Daniel Cayetano 0 0
SYGAL Sebastian Alejandro J. Maximiliano TARZI
7.5 7 Alex 7
TERRAZAS ORDOÑEZ TODARELLO
Alan Mauro 2
TREUTEL Gabriela A. 0
TRONCOSO Manuel Ricardo Velasquez Daniel
6.5 0 7.5 Paula Andrea
VICENTE
YAJANOVECH Sonia Noemí 0
Aruch Lucia Zarate 8
Monday, September 24, 2007
British Men And Relationships
second Recuperatorios
LOCATION OF LAWYERS PROFESSIONAL SERVICES
ADVOCACY SERVICES LOCATION
We can define that this contractual relationship is verified when a person (hereinafter the Customer) entrusted to the lawyer a professional job (counseling or proxy), in exchange for a cash consideration (art. 1623 CC).
's landlord tenant attorney and client. The consideration is the fee.
attorney plays two roles in two different areas, the judicial and extrajudicial. Acts as advisor to the court (advisory) or attorney (legal representation or empowerment) in the judiciary. CHARACTERS
1) Bilateral: It is important to note that this contract has two parties, which do not necessarily have to be two people may be more than two people ..
necessarily the customer is an individual, The reason why they practice this classification, the source is in legal effect and obligations arising from this contract, which are an element that has relevance and impact at the time of the execution of the contract.
This is presented in the client and the abogdo, in time, each party is a debtor and creditor obligations, sacrifice and the rights and duties arising from the contract. Even the customer service may include payment of the price of the consultation and the provision of business that brings you to the lawyer.
Moreover, the customer can go, assisted by an insurance company as an economic instrument for the payment of the fee. This third can become part of the contract relationship in a broad sense, and by involving third parties that have involvement in the same spot.
Therefore, it is possible ¨ ¨ outsourcing benefits, when required the intervention of these, so for and on behalf of the parties are summoned to intervene in this particular contractual relationship.
At this stage of development is prudent to note that bilateralism may be simple or complex. It will be simple when the attorney-client relationship is individual, whereas the complex is as attorney-client relationship is in by a team of lawyers, in the same specialty or multidisciplinary.
2) Consensual: The effects of the contract will occur from the moment of celebration, since it is perfected by mere consent, not requiring any further formality or solemnity determined by law. . Perjuico Without this, as a note characterizing the required consent, we must be informed consent a ¨ ¨, in close reference to the duty of information that requires the lawyer to give details of the risks to the customer or the extra-judicial strategy to propose so that they can discern and choose freely, which they consider more convenient. All this, with the reservations that indicate professional privilege, the special attention to the legal representatives and forced to the disabled, and the psychological situation of the client. This point will be further developed, later.
3) Expensive: This clasificacón comes from French law, and is given when each party receives some of the other, either in the form of an immediate dation, whether in the form of a promise for the future. The provision to which the lawyer is committed because of the consideration for the customer. Although it exists in this contract in particular a feature of human solidarity and charity, which requires the lawyer to act, notwithstanding that he may have expected to collect at any time any sum of money, and it is the duty filled assistentialism, that later informs. . The consideration of customer need not be immediate.
4) commutative: The contract, at the time of its conclusion, it is true and equal benefits for each of the parties, and did not involve any random. The client attends the lawyer with his ill health or to perform a routine check with a clear expectation that they be healed or at least relieved, and the professional, he knows he will face a pathology, and that the counterparty will be subject to therapeutic that prescribe, and accept or not, the therapeutic strategy that the doctor intends.
5) Unnamed or atypical / Nominee or Typical: The registered form or not a contract guard close relationship with his normativisation or legislative reception. Where there is no legal rule that contains it, is known as Nameless or atypical.
While the note of authenticity, is related to the existence of any contract nominated under the Civil Code or other law, containing, and criminalized. In relation to this contract, the doctrine is not peaceful, since it claims that would be an atypical contract, a contract multiforme, or that it is a contract of mandate, or society, and it is not really a service lease professionals.
The importance of establishing the location of contract doctrine, is to determine what the source of applicable rules, thus taking the position of those who consider him a typical contract and nominated, as framed in the language of art. 1143, and the location of services of the Civil Code that would understand. Although the service lease lawyer does not receive a special chapter in the Civil Code, if you have the lease of services and by applying the ratio of the genus and species, the theory allows the absorption standards analog and legislated support of this contract, are applicable to service lease attorney.
While those who argue that would be another kind of contract, analyzed from another perspective, saying that he would apply the rules of the mandate, and others in a more conciliatory stance, agree that this contract can be receptive to various contracts, since we would be facing a protean figure. This rule would not only applicable to this contract, but all contracts involving professional services. For its part, the case has not been clear on this point, arguing "that would generally be the origin of any medical intervention, eg Location of work or services, contractual relationship between a lawyer and a mutual entity, etc., And even spontaneous compliance assistance under the imperative jealous .. Hippocratic moral rule, always half a prior specific adequately provide the medical aid, which creates a legal relationship aimed credit to this provision and that has as its active customer and as debtor counsel.
This legal relationship is undeniable from the time the physician voluntarily go to serve the sick, whether or not there express contract. That prior obligation, locates it, the event within the system of obligations, it makes it differ from tort liability cases in which there is only a general duty to act prudently and do no harm. ¨:
6) No Formal: The contract may be concluded in the form agreed by the parties, without need for special forms or affirmed. Notwithstanding the foregoing, the parties will implement the contract in one or more agreements, depending on the nature and complexity of the benefit. This business is governed in terms of how the provisions of Civil Code for the form of contracts and legal documents. Because of its special features is common to be held in oral form, with a written contract implementation through special agreements advisory service location, subscription for legal assistance, or by conventions of fees for service.
7) Professionalism: This feature is related to the capacity and legitimacy of the contracting parties. It goes without saying that this notice is not required of the customer, if required more professional.
It requires a certificate to the practice of law, and even more, as required by jurisdictional issues, registration to the respective associations, corporations or professional associations. Professionalism is
proficiency testing, and in relation to her I mean education degree at the University of Law, where the lawyer gets his degree, and in turn super-all, graduate, credited increased degree of competence and professionalism. Thus lacking professional training enabling an offense.
is defined as "Attorney, da - m. and f. A person legally authorized to defend at trial, in writing or verbally, the rights and interests of litigants
, and also to give an opinion on the issues or legal
points he queried. (Enciclopedia Planeta - De Agostini / Multimedia News). "
Landlord of service should be a lawyer, received public or private university of the Republic, or abroad, with revalidation of their titles, by local university faculty, and professional associations if they require different Comptroller authorities.
In countries with liberal political systems, there are no schedules of the specialties, coinciding with the demand of students, or with the seats of the various institutions.
8) Scientific Autonomy: The legal knowledge, has its own sphere, which is outside the client normally. As can be seen that the customer is delivered to the attorney. The client attends as it attorney knows that there is another who can pay the debt claimed. There is another who can comply with such provision.
Anyone who promises an activity without the professionalism and scientific freedom, will be faced with a criminal offense of false practice of law.
9) Discretion: The lawyer should propose strategies to the client, and based on scientific freedom is the Uncia working for it. At this point no possibility of discussion by existing customers, since this is the relationship expert and the lay client, unless it is in the presence of peers.
The customer should not feel obliged to receive the attention and expert design strategy, being free to dissent, and to attend other professional. You even have the freedom not to accept the proposed therapeutic, and not to have the lawyer's strategic plan.
Discretion is defined as the "wisdom to form an opinion and tact to speak or act," adapting the definition given to abogadicio act, we must understand it as the wisdom and acuity to form the view, first about the diagnosis of the clinical picture of the client, through all the methods that help to this end * addressing the relationship Customer communication to obtain this consent to the strategic plan to resolve or attempt to exercise the legitimate right to defend their rights and interests, either extra-judicially or judicially.
The discretionary act is that free and prudently does not accurately regulated. This is so because the legal profession is a science or art, this ambiguity of design sits on the fact that art and science have budgets that are common, is more science than art, because it deepens the study of things. The advocacy is considered a science, for the majority, and the proof is the status of University of Law, given to the homes of these studies.
Taking the definition of science, pointed to the foot, we can say that under the principle of discretion, is in the vagaje of rules and principles, demonstrating them through the analytical processes and the whole act abogadicio, strategies and decisions are qualified with their professionalism. The layman, is not a scientific way to learners or reason with the lawyer, which is the best strategy can be applied to your case.
not normally the case, that lawyers must use liaison during the debate or cultural associations of cases filed, as in the work counsel, based on the individuality of the activity, which does not allow this to acquire different points of view in problematic approach to the customer. While the latter part of the professional discretion indirectly, through what the lawyer tells you, personally receiving clarification or a decision to participate in the formation of consent.
CONSENT Consent is an essential element in all contracts. Along with the object and the cause trilogy forms the base, without which there is no contract as such. There are other important, less essential, but essential, others accidental, and finally those who wish to incorporate into the contract the parties themselves.
In contracts of confidence as regards the contract as we are concerned, consent plays an essential role.
The willingness of each party involved is a unilateral legal act, but when both the individual will join the consent is obtained which is expressed as a bilateral act.
The doctrine has tried a variety of definitions to the notion of consent, and one that largely meets all positions, is the holding Aubry and Rau, who says "the required consent to the formation of a contract should be given reciprocally by all parties," which they say Garrido and Zag or, suggests that each of them is that you should pay.
add to these authors, given by Ruggiero, who believes that "consent is the agreement of two declarations of will, which from two different subjects are moving towards a common goal fusing"
The consent of the client must start from a cluster information that the lawyer should provide the client in the decision making process.
The right to information is a conquest of modernity, and has been developed for this and in particular during the post-modernity.
Right the information is extra-content, and integrate the baggage of rights such as freedom, dignity, physical integrity, and other constitutional status. Even
has been receiving in the art. 42 of the Constitution of 1994, when it incorporates the right of users and consumers to protect their health, safety, adequate and accurate.
consent to the professional client must be preceded by an information load, appropriate to the circumstances of time, manner and place.
The quantity and quality of information varies depending on the type of receiver of information, is not the same as informing a client that depressive one with an appropriate psycho-physical preparation. The burden of the information is provided by the attorney.
the proper term is wide enough to understand that there is a lot of types of quality and quantity of information to be supplied. That is, the practitioner must adjust the amount of customer information.
The technical language of any science to be passed to lay people, must be "translated" the colloquial language that is closest to the customer, because of being sent the message to the techniques of professional features, is sure that the patient will not understand, and produce an adverse effect on the relationship attorney client.
As a corollary, the expectation of adequate information is a proper understanding. The message, which is the content of information must reach the recipient in full and appropriate under the circumstances of time, manner and place. In case of misunderstanding of the message, inadequate client's position - as is a state of shock or denial of therapeutics - require that the message is transmitted to another person close by blood or affection, to get the message and may incidentally provide consent by the customer, but only in those cases where the seriousness of the circumstances prevent you from seeking consent to the same customer or judicial authority in case of insanity or absolute refusal of the client.
The importance of consent that professionals require customers is that actions can not be made without their permission or that of the person who is responsible circumstantially. Any legal provision provided without the consent will be specially alleged the professional as an invasion and / or attack the person of the customer.
legal representation to which it refers is the legitimization kin (the parents for their minor children or unborn persons, the spouses to each other) or that provided by law (as in the case of the curators or legally appointed guardians, custody or possession by minors or incompetent.)
In the social scheme of the end of this century, are seen as a common currency the bond of the constitutions of cohabiting couples that do not contain the protection of the law. Also shows that certain relationships based on affection or love, escape the containment of the law, such as holding children in their care, who are abandoned by their parents, or are given in custody to relatives or friends in the impossibility of giving substantial items. There
, given valid consent in this way, the absence of the legal requirement of representation. Assent, as an expression of a lesser degree of consent, common law actions, and as a mere manifestation of which is shared legal decision necessary, is not admissible in law, at the sole exception of the power provided by art. 48 of the CPCC, which allows the attorney to make a defense of a lawsuit even without adequate representation, for a limited period in which the absence of representation to be remedied. Is even more necessary for the immediate intervention of Judges, the cause, or juvenile, or failing that family judges, or any other judge who is on site and is responsible for authorizing the practice of law. In this process the dependent has no intervention. Reiterate the agreement is insufficient to adopt any representation.
The assent given by the family caregiver is not consent, and must be given in very exceptional circumstances. If you should require immediate judicial intervention, asking for the most expeditious route to approval of the practices mentioned.
RIGHTS AND DUTIES OF THE PARTIES
* ATTORNEY:
1. To act (or represent sponsor / Law 10,996 of the law regulating the exercise of the Attorney).
2. Advise
3. Professional secrecy
4. Report: communicating to the client the meaning, scope, risks, and whatever other information may require the client.
5. Make worship and ethical standards of loyalty (to their clients, the lawyers whom he was preceded and opponents and their lawyers).
6. Refrain from representing, defending or sponsor, simultaneously or in succession to persons with conflicting interests. This obligation extends to all members of the study.
7. Refrain from offering their professional services means incompatible with decency, honesty, moral, etc. let alone by deception or by the assurance of results.
8. Refrain from intervening in court proceedings in which he has been a judge, magistrate or judicial officer.
9. Prohibition directed to the counterparty, without respect the colleague who treats.
10. You should not unduly retain documentation of their customers.
11. You must maintain absolute loyalty to their clients and to the court where the play, given their character as judicial officer.
12. Is entitled to charge the fees agreed or judicially regulated, whether his client or the opposing parties.
* CUSTOMER:
1. Must cooperate by providing all the information that is essential to better defend their interests, you must perform all acts and his lawyer advises him to perform.
2. Should help sustain the expenses incurred in defending their interests.
3. You must pay the agreed fee or which they would be regulated charge.
contractual implementation.
is not formal, does not require a particular instrument reaching its conclusion under private instrument. Overall performance for the chain of title does not take a contractual instruments, such as with medical histories.
content processes, ie information, belong to the customer, plus record and store material containing the tools that belong to the lawyer.
The customer is entitled to be informed of the progress of its affairs that are attended by counsel, and therefore such a right must be satisfied by the delivery of reports or copies, reflecting the progress assigned business.
legal privilege.
English doctrine holds that the lawyer is bound to jealously guard the secrets entrusted to his client, which must be interpreted that information secret is known only to the client or by a small group of people who are interested it does not transcend to others. It is an emanation of the principle of confidentiality imposed silence the lawyer everything that has come to its knowledge during the performance of professional tasks entrusted to it, discretion and secrecy must not only maintain their contacts with the client but with family and others. To our knowledge is based ultimately on the right of defense, as enshrined in the Constitution, which would lose all effectiveness if the client did not have the certainty that the confidences given to his lawyer, would divulge it with impunity.
Our legal system protects professional confidentiality is respected both from a procedural standpoint as substantial. Articles 360 and 201 of the Code of Civil and Criminal Procedure, respectively, allow lawyers to provide testimony waived without prejudice to its formal obligation to appear in court.
On the other hand, the violation of professional secrecy is punished as a trespass in the second alternative behavior under Article 231 of the Penal Code, when with malicious abuse of his office uncover the secrets of his client. Even in cases where the discovery of the secrets of the client is done recklessly, in which case, it would be out of the criminal above, to the extent that that lack of discretion has generated injury, the customer would may initiate a civil action for damages resulting from the liability it incurred the professional to his fault cause a harmful event.
This broad recognition provided by the law both to respect the legal privilege to civil and criminal penalties when is violated, is even greater from the standpoint of ethics. Article 10 of the Code of Professional Ethics, after qualifying professional privilege as a duty and a right of counsel, states categorically that, in relation to clients is: "a duty that lasts at all, even after they ceased to provide services "... The following article states that the obligation of professional secrecy covers confidential information given by third parties and counsel arising out of talks for a failed transaction covering also those of colleagues. Our jurisprudence has recognized that legal privilege covers not only his person, which can not be subjected to pressure, but also his professional studio where they work and save documents entrusted to their customers. Constitutes an abuse of search warrant and registration of study from an attorney in order to remove materials from their customers and therefore are part of professional secrecy is imperatively required to save.
According to most authors, the attorney may excuse their legal liability (civil and criminal) in the following cases:
a) When the consent of the informer. The consent of the victim would exclude the unlawfulness of the act, so the behavior would to be illegal, disappearing the foundation of a possible criminal and / or civil liability.
b) damage to an innocent third party. When the revelation of the secret can save from a conviction of an innocent, without generating damage to the confident, based on principles of material justice, is running for the extinction of all responsibility by the attorney.
c) Indictments serious lawyer. In order to be exempted from making false accusations and serious lawyer ceases its legal obligation to keep a secret if its disclosure is the only way to prove his innocence.
The violation of professional secrecy in these cases but does stop any legal responsibility does not preclude the survival of ethical responsibility in accordance with the provisions contained in our Code, an obligation which, in relation to customers, remains at all, as stated. So strict position that derives from the legally protected in these cases not only the right to personal privacy but of public policy confident that requires the absolute safety and protection of the interests associated with the right of defense. Except for extreme cases, then, confident or authorization of or damage to an innocent third party right or to the professional release of the obligation to maintain the reserve.
For some it is legitimate to reveal the secret authorization granted by the Council of the Order at the request of lawyer concerned. Even if such a request followed by an affirmative answer to the Order would ensure the absence of counsel reproach, it is difficult to imagine in practice because in order for the Council of the Order unable to be in a position to relieve him of his obligation of confidentiality should have sufficient information to decide, implying prior disclosure of the secret.
On the other hand, the essence of the lawyer's professional duty is to be a servant of justice and an associate of his administration, as indicated in article 1 of our Code of Professional Ethics. From this flows the obligation to take into primary consideration the interest of the proper administration of justice which is an ancillary activity. Here comes a very clear conflict of interest is not always an easy solution. Some of these conflicts are solved explicitly in the law, as with the obligation to testify, which may be excused in secrecy assured.
should be excluded of course, the framework of professional secrecy, the query followed by the confidence made by those who prepare fraudulent or criminal action. Along with the refusal to acquit, the attorney is ethically obligated to report such fact. This situation changed radically when confidences are hand delivered to counsel after of perpetrators.
more reason to be excluded from the scope of privilege those records that are related to unlawful acts or situations where counsel has been actively involved as a perpetrator, accomplice or abettor, because in these cases general rules governing the accused. It is clear however, that the lawyer can never becoming a suspect in a criminal act when the only history that is wielded against him from his professional involvement flowing clearly not the knowledge of the illegality of their party. The situation is different
attorney running or carrying out acts to ease offenders the use of the effects of a crime or misdemeanor of which commission known. In these extreme cases the obligation to report the attorney is limited only to acts of their own and even if somehow to disclose affected the confidence of one who was his client. Require the mandatory declaration when it affects the defendant attorney privilege, as well the renowned teacher says Carrara, would pretend to do justice through an immorality, a view to which I subscribe fully.
Consistent with what has been exposed to the Law No. 19,077, published in the Official Gazette on August 28, 1991, which introduced Article 269 bis of the Code Criminal Procedure, creating the figure called "Obstruction of Justice, expressly excuse the attorney's responsibility to refuse to provide background courts know for professional reasons and that may help to establish the existence of a crime or punishable participation particular person.
In the collision of interest that may arise between the duty of professional secrecy and the obligation to cooperate with justice must prevail usually the first, the only way to protect the functionality of the profession ensuring everyone their freedom to function against attorney trust and free of any concern.
All this, with the exception that no principle is worth before a real, personal and deep moral conviction of the lawyer, about the need to say what is forbidden as this avoids a greater evil can not be remedied otherwise.
Madrid, October 15 / The President of the General Bar Council has expressed confidence that the reconciliation of European Parliamentarians and ECOFIN (Council of Ministers of Economy and Finance of the Fifteen) on Money Laundering Directive culminate in the ratification of legal privilege. Carlos Carnicer "is unacceptable for a lawyer, as such, participate in the commission of a crime of money working or advising on how to do it, since then we are talking about a criminal and not a professional. "Within the text to reconcile" where they will cause problems is determining when the lawyer can "know" exactly when the customer wishes to use his legal expertise to commit a crime ".
According Carnicer" The wording of the draft Precept prepared by the Conciliation Commission has three assumptions: The first entails the active participation of counsel in the crime of money laundering and, therefore, already today, is absolutely interdicted by the rules Criminal Code of Ethics, English and English for Lawyers. "In the second case requires some legal advice and that the attorney is aware that the client uses it to commit a crime, which, too, was being punished by the Penal Code and of course the ultimate sanction of law, such as the expulsion of the race. "
"Implementing the third course," the petition when the lawyer knows his client is seeking advice to launder money "- literally has not been picked by the Code of Conduct for Lawyers," said the President of the English law, "but is a crime, as positive, when the lawyer knows for sure that his client intends to use the legal advice to commit a crime,-which would also fall in previous cases. In what is going to cause problems is in determining when the lawyer can "know" for sure this circumstance. "
" In any case, the draft EU directive sanctioning professional secrecy of lawyers, law as a superior value and justice, it should be borne in mind that under this provision, are exceptions to the general rule and that has to be interpreted very restrictive. "In short, citizens justice and the rule of law must maintain our confidence in the legal privilege that has nothing to do with criminal activities that we all must fight, "concluded Carnicer.
CONCLUSION OF CONTRACT
1. FOR COMPLIANCE WITH THE OBJECT OF THE CONTRACT: Upon completion advice, or legal process.
2. BY WAIVER: It is a unilateral resición. On the resignation of attorney to carry out their acts abogadicios. The notice of resignation must be reliable. In judicial proceedings, the practitioner will be released to act on the expiration of the term of the certificate for which you are notified. In both must continue to attend in defense of their rights.
3. FOR REMOVAL OF ATTORNEY: This is another kind of unilateral resición happen when the client decides to remove the lawyer to assist him.
GENERATED ACTIONS
favor of the professional:
1. Termination of the contract, when necessary to obtain the termination of the contract.
2. Charging fees, when the same are not paid by the customer or the enemy, and they come from a contract or fee regulation.
favor of the customer:
1. Damages for the negligent act or omission of the duties of his office.
2. Termination of the contract, in the case of professional subscriptions. FERNANDEZ
LOCATION OF LAWYERS PROFESSIONAL SERVICES
ADVOCACY SERVICES LOCATION
We can define that this contractual relationship is verified when a person (hereinafter the Customer) entrusted to the lawyer a professional job (counseling or proxy), in exchange for a cash consideration (art. 1623 CC).
's landlord tenant attorney and client. The consideration is the fee.
attorney plays two roles in two different areas, the judicial and extrajudicial. Acts as advisor to the court (advisory) or attorney (legal representation or empowerment) in the judiciary. CHARACTERS
1) Bilateral: It is important to note that this contract has two parties, which do not necessarily have to be two people may be more than two people ..
necessarily the customer is an individual, The reason why they practice this classification, the source is in legal effect and obligations arising from this contract, which are an element that has relevance and impact at the time of the execution of the contract.
This is presented in the client and the abogdo, in time, each party is a debtor and creditor obligations, sacrifice and the rights and duties arising from the contract. Even the customer service may include payment of the price of the consultation and the provision of business that brings you to the lawyer.
Moreover, the customer can go, assisted by an insurance company as an economic instrument for the payment of the fee. This third can become part of the contract relationship in a broad sense, and by involving third parties that have involvement in the same spot.
Therefore, it is possible ¨ ¨ outsourcing benefits, when required the intervention of these, so for and on behalf of the parties are summoned to intervene in this particular contractual relationship.
At this stage of development is prudent to note that bilateralism may be simple or complex. It will be simple when the attorney-client relationship is individual, whereas the complex is as attorney-client relationship is in by a team of lawyers, in the same specialty or multidisciplinary.
2) Consensual: The effects of the contract will occur from the moment of celebration, since it is perfected by mere consent, not requiring any further formality or solemnity determined by law. . Perjuico Without this, as a note characterizing the required consent, we must be informed consent a ¨ ¨, in close reference to the duty of information that requires the lawyer to give details of the risks to the customer or the extra-judicial strategy to propose so that they can discern and choose freely, which they consider more convenient. All this, with the reservations that indicate professional privilege, the special attention to the legal representatives and forced to the disabled, and the psychological situation of the client. This point will be further developed, later.
3) Expensive: This clasificacón comes from French law, and is given when each party receives some of the other, either in the form of an immediate dation, whether in the form of a promise for the future. The provision to which the lawyer is committed because of the consideration for the customer. Although it exists in this contract in particular a feature of human solidarity and charity, which requires the lawyer to act, notwithstanding that he may have expected to collect at any time any sum of money, and it is the duty filled assistentialism, that later informs. . The consideration of customer need not be immediate.
4) commutative: The contract, at the time of its conclusion, it is true and equal benefits for each of the parties, and did not involve any random. The client attends the lawyer with his ill health or to perform a routine check with a clear expectation that they be healed or at least relieved, and the professional, he knows he will face a pathology, and that the counterparty will be subject to therapeutic that prescribe, and accept or not, the therapeutic strategy that the doctor intends.
5) Unnamed or atypical / Nominee or Typical: The registered form or not a contract guard close relationship with his normativisation or legislative reception. Where there is no legal rule that contains it, is known as Nameless or atypical.
While the note of authenticity, is related to the existence of any contract nominated under the Civil Code or other law, containing, and criminalized. In relation to this contract, the doctrine is not peaceful, since it claims that would be an atypical contract, a contract multiforme, or that it is a contract of mandate, or society, and it is not really a service lease professionals.
The importance of establishing the location of contract doctrine, is to determine what the source of applicable rules, thus taking the position of those who consider him a typical contract and nominated, as framed in the language of art. 1143, and the location of services of the Civil Code that would understand. Although the service lease lawyer does not receive a special chapter in the Civil Code, if you have the lease of services and by applying the ratio of the genus and species, the theory allows the absorption standards analog and legislated support of this contract, are applicable to service lease attorney.
While those who argue that would be another kind of contract, analyzed from another perspective, saying that he would apply the rules of the mandate, and others in a more conciliatory stance, agree that this contract can be receptive to various contracts, since we would be facing a protean figure. This rule would not only applicable to this contract, but all contracts involving professional services. For its part, the case has not been clear on this point, arguing "that would generally be the origin of any medical intervention, eg Location of work or services, contractual relationship between a lawyer and a mutual entity, etc., And even spontaneous compliance assistance under the imperative jealous .. Hippocratic moral rule, always half a prior specific adequately provide the medical aid, which creates a legal relationship aimed credit to this provision and that has as its active customer and as debtor counsel.
This legal relationship is undeniable from the time the physician voluntarily go to serve the sick, whether or not there express contract. That prior obligation, locates it, the event within the system of obligations, it makes it differ from tort liability cases in which there is only a general duty to act prudently and do no harm. ¨:
6) No Formal: The contract may be concluded in the form agreed by the parties, without need for special forms or affirmed. Notwithstanding the foregoing, the parties will implement the contract in one or more agreements, depending on the nature and complexity of the benefit. This business is governed in terms of how the provisions of Civil Code for the form of contracts and legal documents. Because of its special features is common to be held in oral form, with a written contract implementation through special agreements advisory service location, subscription for legal assistance, or by conventions of fees for service.
7) Professionalism: This feature is related to the capacity and legitimacy of the contracting parties. It goes without saying that this notice is not required of the customer, if required more professional.
It requires a certificate to the practice of law, and even more, as required by jurisdictional issues, registration to the respective associations, corporations or professional associations. Professionalism is
proficiency testing, and in relation to her I mean education degree at the University of Law, where the lawyer gets his degree, and in turn super-all, graduate, credited increased degree of competence and professionalism. Thus lacking professional training enabling an offense.
is defined as "Attorney, da - m. and f. A person legally authorized to defend at trial, in writing or verbally, the rights and interests of litigants
, and also to give an opinion on the issues or legal
points he queried. (Enciclopedia Planeta - De Agostini / Multimedia News). "
Landlord of service should be a lawyer, received public or private university of the Republic, or abroad, with revalidation of their titles, by local university faculty, and professional associations if they require different Comptroller authorities.
In countries with liberal political systems, there are no schedules of the specialties, coinciding with the demand of students, or with the seats of the various institutions.
8) Scientific Autonomy: The legal knowledge, has its own sphere, which is outside the client normally. As can be seen that the customer is delivered to the attorney. The client attends as it attorney knows that there is another who can pay the debt claimed. There is another who can comply with such provision.
Anyone who promises an activity without the professionalism and scientific freedom, will be faced with a criminal offense of false practice of law.
9) Discretion: The lawyer should propose strategies to the client, and based on scientific freedom is the Uncia working for it. At this point no possibility of discussion by existing customers, since this is the relationship expert and the lay client, unless it is in the presence of peers.
The customer should not feel obliged to receive the attention and expert design strategy, being free to dissent, and to attend other professional. You even have the freedom not to accept the proposed therapeutic, and not to have the lawyer's strategic plan.
Discretion is defined as the "wisdom to form an opinion and tact to speak or act," adapting the definition given to abogadicio act, we must understand it as the wisdom and acuity to form the view, first about the diagnosis of the clinical picture of the client, through all the methods that help to this end * addressing the relationship Customer communication to obtain this consent to the strategic plan to resolve or attempt to exercise the legitimate right to defend their rights and interests, either extra-judicially or judicially.
The discretionary act is that free and prudently does not accurately regulated. This is so because the legal profession is a science or art, this ambiguity of design sits on the fact that art and science have budgets that are common, is more science than art, because it deepens the study of things. The advocacy is considered a science, for the majority, and the proof is the status of University of Law, given to the homes of these studies.
Taking the definition of science, pointed to the foot, we can say that under the principle of discretion, is in the vagaje of rules and principles, demonstrating them through the analytical processes and the whole act abogadicio, strategies and decisions are qualified with their professionalism. The layman, is not a scientific way to learners or reason with the lawyer, which is the best strategy can be applied to your case.
not normally the case, that lawyers must use liaison during the debate or cultural associations of cases filed, as in the work counsel, based on the individuality of the activity, which does not allow this to acquire different points of view in problematic approach to the customer. While the latter part of the professional discretion indirectly, through what the lawyer tells you, personally receiving clarification or a decision to participate in the formation of consent.
CONSENT Consent is an essential element in all contracts. Along with the object and the cause trilogy forms the base, without which there is no contract as such. There are other important, less essential, but essential, others accidental, and finally those who wish to incorporate into the contract the parties themselves.
In contracts of confidence as regards the contract as we are concerned, consent plays an essential role.
The willingness of each party involved is a unilateral legal act, but when both the individual will join the consent is obtained which is expressed as a bilateral act.
The doctrine has tried a variety of definitions to the notion of consent, and one that largely meets all positions, is the holding Aubry and Rau, who says "the required consent to the formation of a contract should be given reciprocally by all parties," which they say Garrido and Zag or, suggests that each of them is that you should pay.
add to these authors, given by Ruggiero, who believes that "consent is the agreement of two declarations of will, which from two different subjects are moving towards a common goal fusing"
The consent of the client must start from a cluster information that the lawyer should provide the client in the decision making process.
The right to information is a conquest of modernity, and has been developed for this and in particular during the post-modernity.
Right the information is extra-content, and integrate the baggage of rights such as freedom, dignity, physical integrity, and other constitutional status. Even
has been receiving in the art. 42 of the Constitution of 1994, when it incorporates the right of users and consumers to protect their health, safety, adequate and accurate.
consent to the professional client must be preceded by an information load, appropriate to the circumstances of time, manner and place.
The quantity and quality of information varies depending on the type of receiver of information, is not the same as informing a client that depressive one with an appropriate psycho-physical preparation. The burden of the information is provided by the attorney.
the proper term is wide enough to understand that there is a lot of types of quality and quantity of information to be supplied. That is, the practitioner must adjust the amount of customer information.
The technical language of any science to be passed to lay people, must be "translated" the colloquial language that is closest to the customer, because of being sent the message to the techniques of professional features, is sure that the patient will not understand, and produce an adverse effect on the relationship attorney client.
As a corollary, the expectation of adequate information is a proper understanding. The message, which is the content of information must reach the recipient in full and appropriate under the circumstances of time, manner and place. In case of misunderstanding of the message, inadequate client's position - as is a state of shock or denial of therapeutics - require that the message is transmitted to another person close by blood or affection, to get the message and may incidentally provide consent by the customer, but only in those cases where the seriousness of the circumstances prevent you from seeking consent to the same customer or judicial authority in case of insanity or absolute refusal of the client.
The importance of consent that professionals require customers is that actions can not be made without their permission or that of the person who is responsible circumstantially. Any legal provision provided without the consent will be specially alleged the professional as an invasion and / or attack the person of the customer.
legal representation to which it refers is the legitimization kin (the parents for their minor children or unborn persons, the spouses to each other) or that provided by law (as in the case of the curators or legally appointed guardians, custody or possession by minors or incompetent.)
In the social scheme of the end of this century, are seen as a common currency the bond of the constitutions of cohabiting couples that do not contain the protection of the law. Also shows that certain relationships based on affection or love, escape the containment of the law, such as holding children in their care, who are abandoned by their parents, or are given in custody to relatives or friends in the impossibility of giving substantial items. There
, given valid consent in this way, the absence of the legal requirement of representation. Assent, as an expression of a lesser degree of consent, common law actions, and as a mere manifestation of which is shared legal decision necessary, is not admissible in law, at the sole exception of the power provided by art. 48 of the CPCC, which allows the attorney to make a defense of a lawsuit even without adequate representation, for a limited period in which the absence of representation to be remedied. Is even more necessary for the immediate intervention of Judges, the cause, or juvenile, or failing that family judges, or any other judge who is on site and is responsible for authorizing the practice of law. In this process the dependent has no intervention. Reiterate the agreement is insufficient to adopt any representation.
The assent given by the family caregiver is not consent, and must be given in very exceptional circumstances. If you should require immediate judicial intervention, asking for the most expeditious route to approval of the practices mentioned.
RIGHTS AND DUTIES OF THE PARTIES
* ATTORNEY:
1. To act (or represent sponsor / Law 10,996 of the law regulating the exercise of the Attorney).
2. Advise
3. Professional secrecy
4. Report: communicating to the client the meaning, scope, risks, and whatever other information may require the client.
5. Make worship and ethical standards of loyalty (to their clients, the lawyers whom he was preceded and opponents and their lawyers).
6. Refrain from representing, defending or sponsor, simultaneously or in succession to persons with conflicting interests. This obligation extends to all members of the study.
7. Refrain from offering their professional services means incompatible with decency, honesty, moral, etc. let alone by deception or by the assurance of results.
8. Refrain from intervening in court proceedings in which he has been a judge, magistrate or judicial officer.
9. Prohibition directed to the counterparty, without respect the colleague who treats.
10. You should not unduly retain documentation of their customers.
11. You must maintain absolute loyalty to their clients and to the court where the play, given their character as judicial officer.
12. Is entitled to charge the fees agreed or judicially regulated, whether his client or the opposing parties.
* CUSTOMER:
1. Must cooperate by providing all the information that is essential to better defend their interests, you must perform all acts and his lawyer advises him to perform.
2. Should help sustain the expenses incurred in defending their interests.
3. You must pay the agreed fee or which they would be regulated charge.
contractual implementation.
is not formal, does not require a particular instrument reaching its conclusion under private instrument. Overall performance for the chain of title does not take a contractual instruments, such as with medical histories.
content processes, ie information, belong to the customer, plus record and store material containing the tools that belong to the lawyer.
The customer is entitled to be informed of the progress of its affairs that are attended by counsel, and therefore such a right must be satisfied by the delivery of reports or copies, reflecting the progress assigned business.
legal privilege.
English doctrine holds that the lawyer is bound to jealously guard the secrets entrusted to his client, which must be interpreted that information secret is known only to the client or by a small group of people who are interested it does not transcend to others. It is an emanation of the principle of confidentiality imposed silence the lawyer everything that has come to its knowledge during the performance of professional tasks entrusted to it, discretion and secrecy must not only maintain their contacts with the client but with family and others. To our knowledge is based ultimately on the right of defense, as enshrined in the Constitution, which would lose all effectiveness if the client did not have the certainty that the confidences given to his lawyer, would divulge it with impunity.
Our legal system protects professional confidentiality is respected both from a procedural standpoint as substantial. Articles 360 and 201 of the Code of Civil and Criminal Procedure, respectively, allow lawyers to provide testimony waived without prejudice to its formal obligation to appear in court.
On the other hand, the violation of professional secrecy is punished as a trespass in the second alternative behavior under Article 231 of the Penal Code, when with malicious abuse of his office uncover the secrets of his client. Even in cases where the discovery of the secrets of the client is done recklessly, in which case, it would be out of the criminal above, to the extent that that lack of discretion has generated injury, the customer would may initiate a civil action for damages resulting from the liability it incurred the professional to his fault cause a harmful event.
This broad recognition provided by the law both to respect the legal privilege to civil and criminal penalties when is violated, is even greater from the standpoint of ethics. Article 10 of the Code of Professional Ethics, after qualifying professional privilege as a duty and a right of counsel, states categorically that, in relation to clients is: "a duty that lasts at all, even after they ceased to provide services "... The following article states that the obligation of professional secrecy covers confidential information given by third parties and counsel arising out of talks for a failed transaction covering also those of colleagues. Our jurisprudence has recognized that legal privilege covers not only his person, which can not be subjected to pressure, but also his professional studio where they work and save documents entrusted to their customers. Constitutes an abuse of search warrant and registration of study from an attorney in order to remove materials from their customers and therefore are part of professional secrecy is imperatively required to save.
According to most authors, the attorney may excuse their legal liability (civil and criminal) in the following cases:
a) When the consent of the informer. The consent of the victim would exclude the unlawfulness of the act, so the behavior would to be illegal, disappearing the foundation of a possible criminal and / or civil liability.
b) damage to an innocent third party. When the revelation of the secret can save from a conviction of an innocent, without generating damage to the confident, based on principles of material justice, is running for the extinction of all responsibility by the attorney.
c) Indictments serious lawyer. In order to be exempted from making false accusations and serious lawyer ceases its legal obligation to keep a secret if its disclosure is the only way to prove his innocence.
The violation of professional secrecy in these cases but does stop any legal responsibility does not preclude the survival of ethical responsibility in accordance with the provisions contained in our Code, an obligation which, in relation to customers, remains at all, as stated. So strict position that derives from the legally protected in these cases not only the right to personal privacy but of public policy confident that requires the absolute safety and protection of the interests associated with the right of defense. Except for extreme cases, then, confident or authorization of or damage to an innocent third party right or to the professional release of the obligation to maintain the reserve.
For some it is legitimate to reveal the secret authorization granted by the Council of the Order at the request of lawyer concerned. Even if such a request followed by an affirmative answer to the Order would ensure the absence of counsel reproach, it is difficult to imagine in practice because in order for the Council of the Order unable to be in a position to relieve him of his obligation of confidentiality should have sufficient information to decide, implying prior disclosure of the secret.
On the other hand, the essence of the lawyer's professional duty is to be a servant of justice and an associate of his administration, as indicated in article 1 of our Code of Professional Ethics. From this flows the obligation to take into primary consideration the interest of the proper administration of justice which is an ancillary activity. Here comes a very clear conflict of interest is not always an easy solution. Some of these conflicts are solved explicitly in the law, as with the obligation to testify, which may be excused in secrecy assured.
should be excluded of course, the framework of professional secrecy, the query followed by the confidence made by those who prepare fraudulent or criminal action. Along with the refusal to acquit, the attorney is ethically obligated to report such fact. This situation changed radically when confidences are hand delivered to counsel after of perpetrators.
more reason to be excluded from the scope of privilege those records that are related to unlawful acts or situations where counsel has been actively involved as a perpetrator, accomplice or abettor, because in these cases general rules governing the accused. It is clear however, that the lawyer can never becoming a suspect in a criminal act when the only history that is wielded against him from his professional involvement flowing clearly not the knowledge of the illegality of their party. The situation is different
attorney running or carrying out acts to ease offenders the use of the effects of a crime or misdemeanor of which commission known. In these extreme cases the obligation to report the attorney is limited only to acts of their own and even if somehow to disclose affected the confidence of one who was his client. Require the mandatory declaration when it affects the defendant attorney privilege, as well the renowned teacher says Carrara, would pretend to do justice through an immorality, a view to which I subscribe fully.
Consistent with what has been exposed to the Law No. 19,077, published in the Official Gazette on August 28, 1991, which introduced Article 269 bis of the Code Criminal Procedure, creating the figure called "Obstruction of Justice, expressly excuse the attorney's responsibility to refuse to provide background courts know for professional reasons and that may help to establish the existence of a crime or punishable participation particular person.
In the collision of interest that may arise between the duty of professional secrecy and the obligation to cooperate with justice must prevail usually the first, the only way to protect the functionality of the profession ensuring everyone their freedom to function against attorney trust and free of any concern.
All this, with the exception that no principle is worth before a real, personal and deep moral conviction of the lawyer, about the need to say what is forbidden as this avoids a greater evil can not be remedied otherwise.
Madrid, October 15 / The President of the General Bar Council has expressed confidence that the reconciliation of European Parliamentarians and ECOFIN (Council of Ministers of Economy and Finance of the Fifteen) on Money Laundering Directive culminate in the ratification of legal privilege. Carlos Carnicer "is unacceptable for a lawyer, as such, participate in the commission of a crime of money working or advising on how to do it, since then we are talking about a criminal and not a professional. "Within the text to reconcile" where they will cause problems is determining when the lawyer can "know" exactly when the customer wishes to use his legal expertise to commit a crime ".
According Carnicer" The wording of the draft Precept prepared by the Conciliation Commission has three assumptions: The first entails the active participation of counsel in the crime of money laundering and, therefore, already today, is absolutely interdicted by the rules Criminal Code of Ethics, English and English for Lawyers. "In the second case requires some legal advice and that the attorney is aware that the client uses it to commit a crime, which, too, was being punished by the Penal Code and of course the ultimate sanction of law, such as the expulsion of the race. "
"Implementing the third course," the petition when the lawyer knows his client is seeking advice to launder money "- literally has not been picked by the Code of Conduct for Lawyers," said the President of the English law, "but is a crime, as positive, when the lawyer knows for sure that his client intends to use the legal advice to commit a crime,-which would also fall in previous cases. In what is going to cause problems is in determining when the lawyer can "know" for sure this circumstance. "
" In any case, the draft EU directive sanctioning professional secrecy of lawyers, law as a superior value and justice, it should be borne in mind that under this provision, are exceptions to the general rule and that has to be interpreted very restrictive. "In short, citizens justice and the rule of law must maintain our confidence in the legal privilege that has nothing to do with criminal activities that we all must fight, "concluded Carnicer.
CONCLUSION OF CONTRACT
1. FOR COMPLIANCE WITH THE OBJECT OF THE CONTRACT: Upon completion advice, or legal process.
2. BY WAIVER: It is a unilateral resición. On the resignation of attorney to carry out their acts abogadicios. The notice of resignation must be reliable. In judicial proceedings, the practitioner will be released to act on the expiration of the term of the certificate for which you are notified. In both must continue to attend in defense of their rights.
3. FOR REMOVAL OF ATTORNEY: This is another kind of unilateral resición happen when the client decides to remove the lawyer to assist him.
GENERATED ACTIONS
favor of the professional:
1. Termination of the contract, when necessary to obtain the termination of the contract.
2. Charging fees, when the same are not paid by the customer or the enemy, and they come from a contract or fee regulation.
favor of the customer:
1. Damages for the negligent act or omission of the duties of his office.
2. Termination of the contract, in the case of professional subscriptions. FERNANDEZ
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