Simulated buying and selling and fraud identification

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What is simulated trading?

On many occasions, companies find themselves in the unpleasant situation that a client, solvent at the beginning of the commercial relationship, ceases to be so once it has started.

The most common (and at the same time coarsest) mechanism for making assets disappear is the so-called “simulated sale”. It could be defined as the transfer of assets made by the debtor in favor of a relative or acquaintance, thus causing their own insolvency.

To detect if the transmission is simulated or not, the following requirements established by our Civil Code must be observed:

Form: Public Deed. The donation will not be valid if it has been made in a private document.

Content: Expression of goods. The public deed must contain an individualized list of all the assets, as well as the value of the charges.

Will: Acceptance. It must be in an "inter vivos" act and reliably recording the true will of the parties.

Thus, any donation that does not meet the requirements indicated above will be void. As you might imagine, the most “attainable” requirement is that of the will of the parties. Finding out that the true will of the seller and buyer was to defraud their creditors is not easy. Objective data should be used, such as, for example, the close relationship of kinship or friendship between the two, the imminence of an embargo, the ridiculous price agreed, the doubtful origin and destination of the money, etc.

If this "creditoris fraud" is proven (sorry for the Latinjo), the direct consequence will be the obligation to return the asset "stolen from the patrimony"; and for the case in which the return cannot be made, its equivalence in money will be established, taking into account the value of the asset at the time of the "sale" plus the interest accrued from that date. (Photo: free images)

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