Law 24,467 - also known as the PyMEs Act - generated a new corporate type in our country: the Reciprocal Guarantee Societies (S.G.R.).
These companies aim to facilitate access to credit to PyMEs and consist of two categories of partners: participants and protectors.
The participating partners are small and medium-sized companies that can each have up to 5% of the social capital - which is represented by actions - and their total participation cannot exceed 50%. That is, the total participation of the partners involved in the S.G.R. should be 50%, while the participation of each participating partner within the S.G.R. cannot exceed 5% of the social capital represented in shares.
Sitting for this, on the occasion of a partner involved out of the market in search of credit, getting better access to the same in both is supported by the guarantee of the S.G.R. of which it is part. To clarify, PyME presents itself before the City Bank and subscribes to a mutual agreement, the rate that it would achieve alone would be much higher than the rate it can obtain with the guarantee that it confers on S.G.R. that, through a reciprocal guarantee agreement, defends the obligations it takes to waive the small and median company with other entities, becoming responsible jointly for all the debts contracted up to the amount established in the contract.
Why is the word "reciprocal" included in the social type? S.G.R. grants a guarantee to the debts incurred by the participating partner, however, what - at the time of the celebration of the reciprocal guarantee agreement - PyME offers a counter-guarantee for the deadlines it will have to face S.G.R. by virtue of the guarantee provided. Generally, the contragarant is usually a human person, who is a trustee. So, we have two trustees: S.G.R., which responds to the obligations not met by its participating partner and, the trustee (contra-garante) who responds to S.G.R for the sums paid due to the endorsement.
In recent years, with the constant economic crisis in which our country has been missing since 2018, the amount of executive judgments initiated before the National Commercial Fuero was multiplied by the failure of payments by the partner involved in the mutual guarantee society. For the start of the dispute, S.G.R. presents all the documentation and accountability of the payments made to the creditor of the partner involved in its avalist character and, in the face of the lack of payment of the participating partner and contractor, initiates an executive trial against both to satisfy their credit.
Now, generally, both the partners involved and their counterparts (which are usually their owners), have domicile inside the country. The Chamber of Commerce room C began to generate a jurisprudence (not unanimous in the Chamber) through which the contra-garant was equated with a consumer for his human condition, which generates that incompetence is dictated and the trial has to resume in another jurisdiction, delaying the collection of S.G.R. This is unlikely at all, both legal and economic.
First, Art. 1092 of the Civil and Commercial Code of the Nation establishes that the consumer is equated to the consumer who is not part of the consumer relationship, but "as a consequence or on occasion, acquires or uses goods or services as a final recipient. .." That is, in order for the trustee of the participating partner to be matched to the consumer and to count on the proper protection of the law 24.240 must be ensuring a main obligation of a consumer relationship. It is common sense itself that, a reciprocal guarantee agreement signed between SOCIOS of a society to access credit in order to promote the trade of the participating partner is NOT a consumption relationship, is a contract between partners, I repeat, in which does not apply the consumer protection.
In that sense, with good aunt, Dr. Maria José Gigy Traynor in the case "Garantizar S.G.R. c/ Exportera Rio Mendoza S.A. and Other s/ Executive - 25854/2019" rejecting the exception of incompetence brought by the defendants claiming that "admit is posture, it would not only be harmful to SMEs, to whom by this law is intended to benefit (law 24,467:1), but also contrary to the ultimate foundation of the protection regime of the consumer (...)".
In summary, in a context in which the barriers to growth of PyMES are a currency, it is necessary to rely on magistrates who know trade and apply the law properly, so as not to make access to their credit even more engorus. The maintenance of obstacles to the collection of S.G.R. credits based on plenary that, in particular, are contrary to national law, prevents protective partners from setting up these structures and defending the PyMEs in their access to the credit market.
Comments