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.).
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