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.
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