sation thereof. All other assets, books, and papers likewise remain in the possession of the receiver who will acknowledge receipt thereof by signing at the foot of the inventory. (5) If there is property outside of the bankrupt's residence, like measures will be taken in the places where it is situated, the necessary orders being issued for this purpose. If the holders of this property are persons of wellknown standing, it will be deposited with them. (6) If the receiver, or liquidator as the case may be cannot be present personally, he may, on his own responsibility, confer authority on other persons to represent him. (7) The clothes and furniture indispensable to the bankrupt and his family will be delivered to him against a receipt to be appended to the inventory. (8) If the inventory cannot be made in 1 day the court seals will be placed on the rooms where the property is found and police guard will be sought. In case of the bankruptcy of a general partnership or any other having joint and several partners (socios solidarios) the steps just indicated will be taken not only at the principal establishment of the firm but also at the domicile of each of those partners. In the case of corporations and limited liability partnership these measures proceed only at the establishments of the entities. The receiver and the liquidator must do everything necessary to preserve the assets of the estate. They must collect matured credits and accordingly may sue the debtors of the mass. Should it become necessary to sell any property because it is subject to deterioration or expensive to keep, the receiver must so request it of the court which may then appoint a public auctioneer to sell it if the court approves of such sale. Should some of this property be subject to a special privilege the proceeds of its sale will be set aside for the purpose of safeguarding the rights of that privilege (such privileges generally are mortgage or other lien rights). (Arts. 73-76.) LEGAL EFFECTS OF A DECLARATION IN BANKRUPTCY As soon as a bankruptcy is declared, the debtor is removed from the administration and management of all his property including that subsequently acquired while he is under this interdiction. He may only exercise such rights of actions as have for their objects rights inherent in his person or which merely tend to preserve his property and rights. He also ceases in all agencies and commissions accepted before the bankruptcy while his agents and managers cease to be such from the day they receive notice of the declaration on which day also their current accounts must be closed. This deprivation of management does not extend to any pay or pensions due the bankrupt from the State except insofar as garnishment thereof is allowed, nor does it extend to gifts or legacies made or bequeathed to the bankrupt on condition of their not being subject to alienation. The bankrupt retains the management of the property of his wife and children; but the rents and products thereof, which belong to him may be brought into the mass on condition that such income defray any charges to which it is affected without prejudice to the provision of law 11357 of September 1926 (defines the civil rights of women). Should the bankrupt repudiate an inheritancy or legacy the receiver or liquidator, properly authorized by the court to do so, may accept it for the estate; the bankrupt's repudiation in this case is annulled in favor of his creditors to the extent of their claims, but it otherwise subsists, as regards the heir or legatee. (Arts. 104-108.) VOID OR VOIDABLE TRANSACTIONS All acts performed by the bankrupt after the date of suspension of payments, as established by the court, and before the date of the declaration of bankruptcy are void or voidable as regards the estate. The following are null and void: (1) Gratuitous conveyances of personal property, real estate, rights, or rights of action of any nature. (2) Payment of debts not yet due, in cash, by assignment, set-off, transfer, or in any other manner, even though the debtor and creditor act in good faith. (3) Payments of matured debts made otherwise than by money or commercial paper. (4) All mortgages, antichresis, and pledges established upon property of the debtor to secure prior obligations not of this nature. All other payments of matured obligations, conveyances and, in general, all acts and obligations even though not commercial, executed by the debtor after the suspension of payments are voidable (their annulment may be sought) if those who receive something from or so dealt with the debtor had knowledge of his suspension of payments; the rights of third parties in good faith to recover from the estate amounts belonging to them and which went into the mass, are reserved. Any judgment, which condemns the bearer of a bill of exchange to restore what he received from the debtor after having notice of his suspension of payments, has the effect of a protest for the purpose of proceeding against the drawer and endorser. The declaration of bankruptcy affects lease contracts as follows: (1) If the bankrupt is the lessee, both the other party as well as the liquidator may demand the rescission of the lease. The term within which to terminate the contract is the legal term. (2) If the bankrupt is the lessor, the contract continues in force. In all other bilateral contracts, if the object has not yet been delivered to the bankrupt, the other party may rescind the contract within the third day after the expiration of the term of publication of the notices of the bankruptcy. When that term expires the receiver may become subrogated to the rights of the bankrupt and demand. performance or rescind the contract with permission of the board of supervisors or court if such board has not been appointed. The declaration in bankruptcy stays all proceedings against the bankrupt and they may be directed or continued against the estate. The adjudication causes the consolidation into the bankrutcy proceedings of all actions at law pending against the bankrupt with respect to his property. The adjudication in bankruptcy renders all the bankrupt's debts, whether civil or commercial, demandable, even though not yet due, the interest corresponding to the time remaining until maturity being deducted. Annual obligations are excepted until the court, upon consideration of the conditions thereof, fixes the amount for which the creditor may claim against the estate. The adjudication also suspends with regard to the estate the accrual of interest on all credits not secured by a privilege, pledge, or mortgage. Interest on secured credits may be claimed only against the property of the estate affected with such security. Codebtors of the bankrupt in commercial debts not yet due at the time of the bankruptcy are obliged only to guarantee payment at maturity if they do not prefer to pay immediately; this only applies to those who became liable simultaneously. When their obligations are successive, as in the case of indorsements, the bankruptcy of the subsequent indorser does not produce a right of action against the previous ones before maturity. In the case of a debt secured by fianza (guarantee or suretyship), if the bankrupt is the principal debtor, the fiador (surety or guarantor) will enjoy all the terms of the contract; on the other hand if the fiador is the bankrupt, another fiador may be demanded provided the fianza was provided by contractual stipulations in which the creditor demanded that certain person (now in bankruptcy) be made "fiador." (See art. 479, Code of Commerce.) Set-offs may be made in case of bankruptcy in accordance with the rules governing this manner of extinguishing obligations. However, assignees or indorsees of securities or credit papers may not plead set-off against the bankrupt. The rights of actions of the estate may be prosecuted by the liquidator before the proper courts except those to annul transactions (by this law declared void or voidable-see ante p. 123) which actions are exercised in the court before which the bankruptcy proceedings are pending. (Arts. 104-122.) CLOSURE OF BANKRUPTCY PROCEEDINGS At any time when the proceedings in bankruptcy are delayed because of lack of assets to pay the expenses, the court may order the closure of the bankruptcy even on its own initiative. This fact raises a presumption of fraud or culpability against the debtor and the writ of closure will provide that the record be transmitted to the proper criminal court and will order the arrest of the bankrupt. The creditors immediately recover the exercise of their individual rights of action except as otherwise restricted by this law. An appeal is allowed from this order. The bankrupt or any other interested party may obtain a reversal of the order of closure by proving that there are funds to meet the expenses of the bankruptcy proceedings or by depositing to the order of the court an amount sufficient to defray such expenses. (Arts. 104-122.) INCIDENTAL PROCEEDINGS (INCIDENTES) Applications for revocation or annulment of the bankruptcy for the examination and ranking of claims not presented in time, and for reconsideration of rulings admitting or rejecting claims which have been questioned, in whole or in part, will be prosecuted in proceedings separate and incidental to the bankruptcy and known as "incidentes." The parties interested must be served with the initial pleading in these proceedings in order to answer within a peremptory term of 3 days. When the answer is filed or the term expires the court fixes a date for a hearing of the evidence within 8 days. Should the testimony of witnesses be admissible each party cannot present more than four witnesses to prove each of the fundamental facts. The parties are obliged to press for the presentation of all the evidence on the day of the hearing; if this is not possible another hearing will be held within 3 days. If the question is purely one of law the record will be served on the parties in order, for a peremptory term of 3 days. When all the evidence has been presented, or a rejoinder filed on the second service, all discussion is closed and the court renders its ruling within 5 days-only an appeal for restatement will lie from it. No recourse or appeal is allowed from any other rulings in these proceedings. All other actions which should arise will be prosecuted in accordance with the procedure prescribed by local law (each Province of Argentina has its own Code of Civil Procedure). (Arts. 77–84.) OFFICIALS AND EMPLOYEES IN BANKRUPTCY PROCEEDINGS The officials to be employed in the conduct and administration of bankruptcies, in addition to the judge of the court of commerce, the public attorney, and the clerk of the court, are the receiver, the liquidator, and the board of supervisors. The first exercises his duties in compositions, the reporting (fact-gathering) stage of bankruptcies and in small bankruptcies, in the manner heretofore indicated. The liquidator represents the estate in its liquidation under authority of the court, whether or not a declaration of bankruptcy is made. The board of supervisors, whose creation is optional, represents the creditors for the purpose of supervising the insolvent who has made a composition or the liquidator, with the powers which the creditors deem fit to confer to it. The receivers are appointed for each case from lists of not less than 5 nor more than 100 accountants which lists are prepared annually by the commercial court of appeals and the tribunals exercising similar jurisdiction in the provinces or federal judicial departments. Such accountants must have university degree and must have practiced as such for at least 3 years; those listed cannot appear in the lists again until 1 to 3 years thereafter. At places where there are no qualified accountants the list may be made up of lawyers with national university degree. The selection of the receiver from these lists is by lots drawn in the presence of the debtor, accountants, and any other persons following the presentation of the application for composition or bankruptcy and eliminating the accountants already appointed. The day and hour when the lots are to be drawn must be announced 24 hours in advance by notices posted in the notice board of the proper courts. The liquidator or liquidators are appointed by the court from among the creditors of known solvency and who suffer most by reason of the bankruptcy. No creditor may be appointed liquidator, in more than five liquidations or bankruptcies during 1 year, in each judicial area. No relative of the insolvent within the fourth degree inclusive of consanguinity or affinity may act as receiver or liquidator. The board of supervisors is elected by majority of votes both personal and capital when the composition is approved or rejected or when the procedure relative to the examination of claims in a bankruptcy is terminated. The receiver may be suspended by the court and removed by the court of appeals for gross fault or failure in the discharge of his duties without prejudice to any rights of action which may lie against him. The liquidator may be removed by the court on its own motion or at the request of any creditor in case of negligence, abandonment, or failure to perform his duties; he may appeal from such removal to the proper court of appeals. The authority of the board of supervisors may be withdrawn at any time by the meeting of creditors, with or without cause. To that effect a meeting may be called by the court when requested by creditors representing one-twentieth of the claims admitted (verified capital). Both the receiver and liquidator may retain lawyers to advise them. In order to be appointed in bankruptcy proceedings, an auctioneer must be duly registered and have had a place or office open to the public for the 6 preceding years except where there are no auctioneering firms or only a limited number. (Arts. 87-96.) FEES OF EMPLOYEES AND OFFICIALS The receiver or liquidator may employ the help necessary to the exercise of his functions, with the approval of the court after showing that such help is required. The salary of such assistants will be fixed with due regard to economizing the expenses and to the current value of their services. If not approved by the court, it must determine the help needed and its remuneration. Except in cases of services payable monthly or of operations concluded and contracted for a specified sum, no funds may be withdrawn from the estate for payments of continuous services the remuneration for which depends on the assessment of the court. The fees of the receiver and his counsel are regulated by the court which approves or rejects the composition and declares the bankruptcy or orders the liquidation. The proper ruling may be appealed by the debtor, receiver, or his counsel within 3 days. In the latter two cases it must be published for 3 days and is also appealable by the creditors within 3 days thereafter. The fees of the liquidator, board of supervisors and their counsel are determined by the court when the declaration of dividends is approved and will be paid when the first dividend is received by the creditors these parties may appeal from the corresponding ruling within 3 days. In compositions the fees of the receiver and his counsel will be paid or guaranteed by the debtor within 30 days after the amount of the fees is fixed by the court under pain of the debtor's interdictions being maintained. If the composition proceeding ends in bankruptcy or liquidation without declaration in bankruptcy, the fees of the receiver and his counsel will be paid by the estate at the same time as those of the liquidator. The total amount of fees and remunerations in the bankruptcy proceeding and its incidental proceedings (incidentes) will be fixed on the basis of the liquid assets and in accordance with the following schedule: If the assets do not exceed 2,000 pesos-up to 50 percent. On the excess over 10,000 up to 30,000-up to 25 percent. The total amount of fees and remunerations in the composition proceeding, whatever the outcome may be, will be determined by the court on the basis of the assets available and in accordance with the following schedule: If the assets do not exceed 2,000 pesos--up to 15 percent. |