Comprehensive Notes on Argentine Commercial and Enterprise Law
Legal Personality and the Nature of Argentine Societies
Legal persons are entities to which the legal order grants the capacity to acquire rights and contract obligations to fulfill their specific objectives and the purpose of their creation. In Argentina, the existence of a private legal person begins at the moment of its constitution and does not require a prior legal authorization for its functioning. This legal personality is strictly differentiated from that of its members, meaning the entity is a distinct legal subject. However, the principle of "inoponibilidad" (disregard of legal personality) applies if the society is used to commit fraud or prejudice third parties. In such cases, the law ignores the corporate veil and makes the partners personally liable with their individual assets. The participation of the state in a legal person does not alter its legal nature, although statutes may provide for differentiated rights and obligations.
Argentine law applies mandatory norms, the constitutive act with its modifications, and supplementary rules from special laws to these entities. For international operations, general society laws typically govern. Every legal person must have a name that identifies it as a true and distinct legal entity, showing its specific type, such as a Sociedad Anónima () or a Sociedad de Responsabilidad Limitada (). This name can be a "razón social," including the names of partners, or a "denominación social," which is a trade or fantasy name. The domicile must be fixed in the statute, and any change requires a statutory modification. The object of the legal person must be precise and determined. Administrators must act with loyalty and diligence, following the duty to avoid favoring interests contrary to those of the entity. Failure to do so results in solidary and unlimited liability for damages caused by their fault.
The duration of a legal person can be extended via a "prórroga" if the members decide so according to the law and communicate it to control authorities before expiration. If the term expires, the entity may be "reconducida" (reactivated) as long as the liquidation process has not finalized. Once dissolved, the entity may only complete pending operations, pay debts, and distribute the remaining assets. Continued operation beyond this point results in solidary and unlimited liability for administrators and partners. Effectively, a society acts as a contract of autonomous and organizational benefits that distributes government, administration, representation, and fiscalization competencies among participants. It is considered an optimal contract rather than a perfect one, regulating essential matters and leaving contingencies to the law and society organs.
Requirements for Constitution and Registration
For a society to exist as a regular legal entity, several indispensable elements must be present. These include the quantity of partners, which can be plurality or unilaterality in specific cases, and a defined organization. The entity must adhere to "tipicidad," meaning it must fit into one of the types established by law, such as an , an , or a Sociedad Colectiva (). Partners must provide contributions (aportación) to form the social patrimony necessary to fulfill the object. There must be an economic purpose and a shared plan for the distribution of benefits and the bearing of losses. If the contract is silent on this, distribution is proportional to contributions. Furthermore, the "affectio societatis," or the genuine intention to associate with others, is a fundamental psychological element.
Societies are registered via public or private instruments; however, capital societies like an must use a public instrument. The constitutive act, its modifications, and regulations must be inscribed in the Public Registry of the social domicile and each branch. Documentation must explicitly state the address of the head office and registration data. Registration must be requested within days, with an additional days provided to complete the process. Late registration is only admitted if there is no opposition. For an and societies by shares, an announcement must be published for one day in the Official Bulletin to disclose essential information, including partner data, date of the instrument, social name, domicile, object, duration, capital, and the organization of administration and fiscalization.
Capital must be clearly fixed with characters of determination, intangibility (maintaining a reasonable relationship between capital and assets to protect third parties), invariability (cannot be modified without formal social decision), and unity (a single capital responding to all social debts). Specific statutory stipulations are declared null if they exclude partners from benefits, release them from losses, guarantee fixed returns regardless of profits, or fix unfair prices for buying out a partner's share. If requirements are missing, the Public Registry requests a correction (subsanación) rather than imposing a sanction.
Societies Not Regularly Constituted and Section IV
Societies that possess defects in their constitution, such as failing to register or lacking essential statutory requirements (as per Article or formal social types), are categorized under Section IV. These include irregular societies, which have a valid contract but lack registration, and factual societies ("sociedades de hecho"), which lack a written contract or possess only a precarious one. These entities have legal personality and must demonstrate a distinct social patrimony and real activity. However, they are restricted from certain procedures such as transformation, fusion, spin-offs (escisión), or the exclusion of partners.
The social contract in these cases always binds the partners and can only be opposed to third parties if it is proven that the third party knew of the contract. Partners in these societies respond to third parties as "obligados simplemente mancomunados" (jointly liable) in equal parts, unless solidarity or a different proportion is expressly established. Deficiencies in the contract can be remedied at any time during the society's existence, requiring unanimous agreement. In the absence of unanimity, a judicial order through a summary proceeding can force correction. A disgruntled partner has a right to recede from the society within days of a firm judicial decision. If no duration is fixed, any partner can provoke dissolution by notifying others, which takes effect after days.
The Status and Rights of the Partner
The status of a partner encompasses a set of rights, duties, and responsibilities. Participation varies by society type: "partes de interés" in societies of persons, "cuotas" in mixed societies, and "acciones" in capital societies. This status is acquired originally through the constitutive act, subsequently through acquisition (gratuitous or onerous), by succession, or by judicial resolution in cases of forced hereditary indivision. The primary obligations of a partner are to fulfill promised contributions, act according to the social interest, and contribute to losses.
Inalienable and non-derogable rights include the right to information, to vote, to recede (Article ), to maintain the tangibility of their social participation, to the right of accretion (Article ), and the right to call for partner meetings or assemblies. Patrimonial rights include dividends, which are distributions of real profits based on a balanced sheet, and the "cuota de liquidación," or the reimbursement of participation if assets remain after dissolution. Transmission of the partner status depends on the society type: in societies of persons, it requires unanimous consent; in mixed societies, quotas are generally transmissible unless limited by preference rights; in capital societies, actions are freely transmissible. In the event of death, societies of persons and mixed societies often resolve the contract partially unless otherwise agreed, while capital societies continue with the heirs as shareholders.
The law prohibits the figures of the "apparent partner" and the "hidden partner." An apparent partner acts as such without being one, while a hidden partner participates in profits/losses without formal recognition; both respond solidarily and unlimitedly to third parties. In cases of minor or incapable heirs in a society formed with hereditary assets, their liability must be limited. If a partner fails to pay their contribution on time (mora), the society can demand fulfillment or exclude them. For shareholders in default, the statute may allow for the public sale of their subscription rights, and the partner must pay interests and damages. Dividends may only be distributed from real profits shown in an approved balance sheet; undue payments must be returned.
Civil versus Commercial Societies and Regular Types
There are several distinctions between civil and commercial societies. Commercial societies can be formed through public or private instruments, whereas civil societies traditionally required public deeds. Commercial societies must register in the Public Registry of Commerce, and they are required to maintain a standardized accounting system. While civil societies are always "intuitu personae" (based on the identity of the partners), only some commercial societies share this trait. Liability in commercial societies is often solidary, whereas in regular civil societies, it is not, unless expressly agreed. Both types, however, pursue a profit motive.
Regularly constituted commercial societies adopt a type established in Law . These are classified into societies of persons and capital societies. Societies of persons include the Sociedad Colectiva, where partners have subsidiary, unlimited, and solidary liability. The Sociedad en Comandita Simple involves "comanditados" partners with unlimited liability and "comanditarios" partners whose liability is limited to their contributions and who cannot parttake in administration. The Sociedad de Capital e Industria consists of capitalist partners (unlimited liability) and industrial partners who contribute labor and have liability limited to unperceived profits.
Corporate Governance: The Governing Body
The governing body is the assembly or meeting of partners and acts as the decision-making organ. Decisions are taken by a majority of the social capital. These decisions are binding for all partners, including those absent or dissenting, as well as the administration and fiscalization organs. This body is not permanent and only functions when convened. Key functions include modifying the social contract, electing or removing administrators, approving balances, and deciding on the distribution of utilities. In societies of persons, there is broad freedom to regulate this organ, but the Sociedad Colectiva specifically requires unanimity for contract modifications or part assignments unless a majority is agreed upon. In the Sociedad en Comandita Simple, the "comanditado" partner may provide goods, money, or labor, while the "comanditario" can only provide money or goods.
The Sociedad de Responsabilidad Limitada (SRL)
The is a mixed society where capital is divided into "cuotas" of equal value, typically pesos or multiples thereof. Partners' liability is limited to the integration of the quotas they subscribe to. The number of partners cannot exceed . Capital must be fully subscribed at constitution; cash contributions require at least a integration initially with the remainder paid within years, while in-kind contributions must be integrated at the start. Quotas are transmissible, but the contract may limit this via preference rights. The management organ is the "gerencia," composed of one or more managers (partners or not). Decisions are usually made by a majority of more than half the capital, with some decisions requiring three-quarters (). If the social capital reaches the threshold of Article Clause , an annual assembly becomes mandatory.
The Sociedad Anónima (SA) and Capital Societies
In an , the capital is represented by "acciones" (shares). This society is characterized by the anonymity of its members, focusing on the capital contributed rather than the identity of the partners. Constitution occurs via public instrument by a unique act or public subscription. In public subscription, promoters must draft a foundation program, obtain approval from the control authority within business days, and register it within another days. Subscription must not exceed months. An assembly of constitution is then held to finalize the entity.
Shares must have equal nominal value. Classes of shares include ordinary (generally vote), privileged (up to votes, but no economic privileges in public offerings), and preferred (preference in dividends or capital reimbursement, often without a vote unless dividends are unpaid). Shares can be "al portador," "nominativas endosables," "nominativas no endosables," or "escriturales" (recorded in an account rather than physical titles). The administration is handled by a board of directors (directorio) elected by the assembly. In closed or family-owned societies, the assembly often becomes a formality as power concentrates in the directorio.
Assemblies are either Ordinary (treating balance sheets, dividends, and appointments within months of the fiscal year-end) or Extraordinary (modifying statutes or major structural changes). Quorum for Ordinary assemblies in the first call is the majority of voting shares; the second call allows any number. Extraordinary assemblies require capital for the first call and for the second. Specific grave decisions require a majority of the absolute social capital. Shareholders may delegate their vote but not to administrators. If a conflict of interest exists, the shareholder must abstain. Decisions can be judicially annulled if they violate legal or statutory requirements.
Administration, Representation, and Fiscalization
Administration involves the internal management of the society, while representation is the power to act before third parties. Administrators are chosen by the partners and can be removed freely unless protected by a "justa causa" clause. In capital societies, directors can be removed at any time. Managers and directors must provide a financial guarantee to cover potential damages. Their liability is determined by their conduct; failing to act with loyalty and diligence results in patrimonial responsibility. In plural collegiate boards (like an directorio), liability is solidary. Minority shareholders can use cumulative voting to elect up to one-third () of the board. The remuneration of directors has legal limits and requires assembly approval if exceeded.
Internal fiscalization is performed by the "Consejo de Vigilancia" or the "Sindicatura." The Consejo de Vigilancia is an optional body of to shareholders that supervises the directorio and can even elect them if the statute allows. The Sindicatura is mandatory for large societies or those of public interest, composed of lawyers or accountants. The "sindico" provides a permanent control of the legal and economic status of the society and reports to the assembly. They respond solidarily and unlimitedly for the breach of duties. If a society falls under Article , it moves to permanent state fiscalization (e.g., if it offers shares publicly, has excessive capital, or provides public services).
Structural Reorganization: Transformation, Fusion, and Escisión
Transformation occurs when a society changes its legal type without losing its identity. This requires an agreement by the partners, a special balance sheet closed no more than month prior, publication for one day, and registration. It does not erase the previous liability of partners for obligations born before the transformation. Fusion involves the union of two or more societies. In "proper fusion," all dissolve to create a new one; in "fusion by absorption," one absorbs the others. This requires a preliminary commitment, special balances, and publication for three days in a national newspaper. Creditors have days to oppose. Escisión (spin-off) involves a society dividing its patrimony to transfer parts to new or existing societies. This can be with absorption, simple (creating new entities while the original remains), or by division (the original dissolves).
Dissolution and Liquidation
Dissolution is the legal act that opens the liquidation process due to the expiration of the term, fulfillment of the object, loss of social capital, bankruptcy, or judicial decision. The society retains its personality only for the purposes of liquidation. Liquidators, usually the former administrators, must complete an inventory and balance sheet within days of appointment. They must provide reports every months. Once debts are paid and capital is reimbursed, the final balance and distribution project are submitted. Partners have days to impugn the distribution and up to days for judicial action. Non-claimed funds are deposited in a bank for days, and after years, they go to the local school authority.
The Enterprise and Commercial Law Principles
An enterprise is an organization coordinating capital and labor to produce and commercialize goods/services while assuming risks. Legally, the enterprise is not a subject of right, but the society is. The "fondo de comercio" (establishment) represents the objective element of the enterprise, including tangible and intangible assets. Law regulates its transfer in block to protect creditors via edicts and an opposition period. Intangible value is represented by the "valor llave." Industrial property includes trademarks (valid for years, renewable), patents ( years), and utility models ( years).
Distribution systems allow enterprises to reach markets. Channels can be own, intermediate, or integrated by third parties. Contracts include "Agencia" (independent intermediary promoting business for commission), "Distribución" (reseller buying for mass sale), "Concesión" (organizing a network under the manufacturer's control), and "Franquicia" (granting a proven system/brand and know-how). Franchises have a minimum term of years and require the transfer of a manual of operations. Under the Law of Consumer Defense (), all members of the commercial chain respond solidarily for manufacturing defects.
Modern Contracts and Credit Management
Buying and Selling (Compraventa) involves the transfer of property for a price in money. For real estate, it must be by public deed ( CCyC). A "boleto de compraventa" provides priority against injunctions if the buyer is in good faith and paid at least of the price. Barter (Permuta) involves exchanging goods for goods. A Trust (Fideicomiso) involves a "fiduciante" transferring assets to a "fiduciario" for the benefit of a "beneficiario," with a maximum term of years. The Fiduciary must act as a good businessman and render accounts annually. A Mutuo is a loan of fungible things (like money), while a Comodato is a gratuitous loan of a non-fungible thing. Donation is the gratuitous transfer of ownership among the living.
Credit cards, governed by Law , represent a banking credit contract. The issuer pays the commerce and collects from the holder. Terms must be transparent, and no price difference between cash and card is permitted. Leasing involves the delivery of a good for use with an option to purchase.
Bankruptcy and Business Crisis (Law 24.522)
The concurso process organizes debt collection during a crisis based on the principle of the common guarantee of assets. Bankruptcy ("quiebra") is the collective execution when the state of "cesación de pagos" (suspension of payments) is reached, meaning the patrimony cannot regularly fulfill obligations. The "Concurso Preventivo" aims to avoid bankruptcy through an agreement with creditors. It requires the debtor to transparently present their crisis and balances from the last exercises.
Upon opening a concurso, interests are suspended (except for real guarantees), and the debtor's management is monitored by a syndic (síndico). Creditors must go through a verification process. The debtor proposes a categorization and then a specific agreement during the "period of exclusivity." An agreement requires a double majority: the majority of persons and two-thirds () of the capital in each category. If the agreement fails, a third party can attempt a "salvataje" (cramdown) to rescue the company. If all fail, the court declares the "quiebra," leading to the total liquidation of assets and the displacement of the debtor.
Penal Economic and Tax Law
Penal Economic Law intervenes when business activities damage the economic order. Crimes include tax evasion, social security fraud, and the appropriation of taxes. Evasion is aggravated based on the amount or complexity of the fraud. Professionals like accountants or lawyers can be held responsible if they participate in the fraud. The principle of "Legalidad" ensures no punishment without a prior law. Sanctions can be penal (prison) or administrative (fines from AFIP).
Negotiable Instruments (Títulos Valores)
Credit titles integrate the right into the document, allowing for celerity, certainty, and security in trade. They are necessity-based, literal (the paper is worth what is written), and autonomous (each holder has a new right). A "Letra de Cambio" is an unconditional order to pay, involving a drawer, a drawee, and a beneficiary. Endorsement ("Endoso") transmits the title and guarantees payment. Protest ("Protesto") is the formal act by a notary to prove the lack of acceptance or payment, which is necessary to maintain actions against the drawer and endorsers. A "Pagaré" (Promissory Note) differs as the signer is the primary payer.
Checks are orders to a bank to pay money. Common checks are for immediate payment, while deferred payment checks () have a future date. Checks must be presented for payment within days. Special checks include crossed (only for deposit), certified (funds guaranteed for days minimum), or "no a la orden" (not endosable). For a , the bank registers the check to verify form, and while it does not guarantee funds at registration, it allows for judicial action if rejected. If the check is stolen, the drawer can issue an order not to pay, but can only revoke the payment order after the legal presentation term has passed.