Alternatives for the use of the trusteeship in the Argentinean agricultural sector

Engineer Agr. José A. Wicket (*)

The trusteeship is a juridical instrument of frequent use in anglo-saxon countries and in some of Spanish America especially in Mexico.

In Argentina its implementation was guided in principle as financing mechanism for the construction of housings and instituted by the law 24.441 of the year 1995, however newly during this year they have relaxed alternatives for its use in other economic, included activities the agricultural one.

By means of the figure of Trusteeship it is possible to separate goods of a certain patrimony and to affect them to a specific end. The assets of a trusteeship never mix with those of who administers it and they can only be mobilized of agreement with the instructions of who believes it. The flexibility of the trusteeship allows him to exist in multiple modalities that go, from the probate ones until those of guarantee.

Contrarily to most of the habitual contracts, where there are only two parts (buyer and salesperson, lessor and lessee, donor and donee), in this figure four people appear that are: 1) the constituent or fiduciante; 2) the fiduciary proprietor; 3) the beneficiary, and 4) the trustee.

Let us see who each one is:

1) the constituent or fiduciante are the person that, being the original proprietor, it constitutes the trusteeship, transferring their property or domain that, of being full to their respect, he/she becomes fiduciary domain when it transmits it.

2) the fiduciary proprietor, is the person to who the previous one transmits him the domain of the thing, (we suppose that it is a property), but this transmission is not as the transmission common of the property, because the fiduciary proprietor is not a common proprietor, but in fact he is an administrator of that property, to which he doesn't take out him any profit, except for some honorary one that perceives for his administration. That administration doesn't carry out it in its benefit, but in the third person's of the institute benefit, that is to say of the beneficiary.

3) the beneficiary, as his name indicates it, it doesn't show the property of the thing, but it is who benefits with the rent that produces the exploitation of this, deduced the expenses. As, while the trusteeship lasts, it is who benefits with the administration, he/she has full abilities to demand her to be correct, and to control the fiduciary proprietor. This beneficiary, it could be a third, or the constituent (that he/she would give the property so that he/she administers it to him in their benefit) or the trustee.

4) the trustee is the person to the one who, past a time or fulfilled a condition, the domain of the thing transmits on the part of the fiduciary proprietor again. For the trustee the transmission will be of the full domain, contrary to the fiduciary proprietor's property that is completely restricted, because, like we saw, it is a mere administrator with characteristic very special given by the law. Let us remember that this institute is of successive tract, that is to say that he/she leaves developing along the time, and it is for that reason that, while the trusteeship, the fiduciary proprietor lasts he/she administers in the beneficiary's benefit, and newly at the end it transfers him the full domain to the trustee.

From the point of view of their utility for the agricultural sector, we consider that the trusteeship contributes a differential alternative about the current financing systems and government attendance, mainly for the small and medium companies.

One of the main characteristics of the agricultural sector is their high heterogeneity and the existence of scale disparities among their companies that it places to the small and medium in disadvantages to consent to financial resources. This resources have evolution destination or of investment, being in the trusteeships an attractive alternative to be able to consent to resources provided by institutional agents.

What advantages does it present the trusteeship regarding other mechanisms?:

to) Aísla the involved assets (seizures, competitions or crashes don't affect it).

b) it is more flexible than the mortgage and the garment.

c) it is adaptive to the specific business that seeks to be carried out.

d) it Offers certainty in the provision of funds.

and) it Assures the destination of the resources.

f) it Allows to coordinate the expirations with the acquired commitments

(*) Coordinator of the Unit of Agricultural Financing (Finagro) of the Secretary of Agriculture, Cattle raising, Fishes and Feeding of the Nation