Bs. As., 27/12/96
VISTO Law No. 12.935, Decree-Law No. 25,253 of 11 October 1945 and 14,729 of 23 May 1946, and Decree No. 513 of 14 May 1996 and file No. 676/96 of the SECRETARY of Science and Technology of the Ministry of Culture and Development, and
That the MIGUEL FUNDATION LILLO is an agency of the national state of action in the field of the Province of TUCUMAN.
That by the above-mentioned rules, it was decided that the MIGUEL LILLO FUNDATION would act as an autonomous entity with all the powers and obligations that govern them.
That such a decentralized body depends on the SCIENCE AND TECHNOLOGY SECRETARIAT of CULTURE MINISTERY And EDUCATION, having as the main task the enhancement and preservation of its collections starting from the increase in the permanent research of the flora, fauna and gea of northern Argentina, as well as the publication of its conclusions, the provision of the library service and support to the research.
It also provides advice, from the point of view of its specific competence, on the conservation of natural parks and reserves, to national, provincial and municipal public bodies and agencies and the private sector.
That Dr. Miguel LILLO, by legating his assets to the NATIONAL UNIVERSITY OF TUCUMAN, established a number of charges that included the establishment of an Advisory Commission, to which he assigned explicit objectives.
That between the possibility of situations that might violate such testamentary provisions were resorted to the opinion of the TESORO PROCURATION.
That said body issued Dictamen No. 180/96 in which, after careful documentary analysis, it is issued on the testament and its interpretation, the nature of the so-called MIGUEL LILLO FUNDATION and its current situation; as well as its conclusions on the subject.
That about the will and its interpretation, after making an account of its text, says in foges 172 round, 173 and 173 round that, "the task of interpretation, idle is to point out, is decisive for the fixing of the scopes both of the law and of the manifestation of the will of the individuals. In the case we are concerned, the above-mentioned testamentary clauses are accurate and clear. There seems to be no room for a different appreciation."
"The testator made his legacy in order to form in him an Institute annexed to that University and also legated the same legatary "for the support and promotion of the Institute" exextreme that works as a chargetodo "all the money and its interests" that the testator had deposited in the Bank of the Province of Tucumán with the effects indicated by him".
"Finally, the testator assigned to the Advisory Commission envisaged by the testament, only functions of typical administration and investment as it was to take care to place all the money legacy "in public debt titles" or in "purchase accounts" or "deposits", and to pay with them "the expenses of conservation of the collections of Natural History, books and installations made by the Institute. If once these are covered, a remnant will be destined for the promotion of the Institute."
"At this point it can be considered that from the context that results from the different pieces that are leased to these cars and the foreseeable projection of the verbatim clauses of the will, they allow to form the perception that it was the intention of the testator to depart the investment and expense of his money from the ordinary management of the University, by the way, without prejudice to the funds that this or the National Government could provide additionally."
"It is very likely that the causal motive was the convenient acceleration of the management of the funds that he read in order that, taking advantage of his fruits, he would not be trapped by what he should have thought as slower and bureaucratic budgetary administration of the University."
"In such conditions it must be interpreted that, for the legatary, the existence of an Advisory Commission, with the integration, self-designation and functions that were testamentarily entrusted to it, makes up a second position as the University must respect that existence and functions."
"As I see, this viewing is in line with that which, we must "discern also clearly the economic end that the testator pursues to adhere to him in the interpretation" and that we must solve the difficulties "flinching faithfully in the fundamental thinking of the testator, taking into account all the circumstances that could weigh on his mind at the time of testing" (Erlich Danz, "The Interpretation of the Legals". Revista de Derecho Privado, Madrid 1955, third edition, p. 355)".
"Intellectual independence that every testament has, it compels us to foresee that it would be arbitrary that, on the pretext of unraveling its meaning, it is intended to replace or expand what the testator has wanted. On the other hand, contradictory or deformative provisions are not given; on the contrary, they are reconciled with the whole contextual vision of the will."
"Under such conditions, it is concluded that the will says what it says and that from its own letter it is without effort that it did not foresee or require, by itself, the creation of a Foundation, in the case the so-called "Michael Lillo Foundation". Consequently, this Foundation is not born of the will but of the will of the "Advisory Commission" and its maintenance in the time of the absorption that the National State made.
"The assertion that proceeds is supported by the text of article 1806 of the Civil Code (applicable due to the remission of article 3774), whereas it is not in the case that the legacy has been made "in order to found" the entity, which is not displayed by the designs of the testator".
That in referring to the nature of the MIGUEL LILLO FUNDATION in fojas 173 round 179 the PROCURATION OF THE TESORO emphasizes that "It is now incumbent on to carry out an analysis and interpretation of the norms that gave origin to the entity called "Fundación Miguel Lillo".
"1. It is the case to recall that the Advisory Commission, having taken the decision to obtain legal status, succeeded it by Decree 924/35 of the Executive Branch of the province of Tucumán, which formed its original statutes (fs. 8). These were finally drafted through the text approved by decree of July 22, 1941, the publication of which gives account of the phototatic copy of the edict that works to fact 9 of the present proceedings".
"Initially it is possible to wonder what type of corporation would have been born through the original statutes and the primitive granting of legal personality through Decree 924/35."
That later, the opinion points out: "so the Commission, in obtaining its initial legal personry, adopted as a regime the form of an association, I must now enter into consideration the nature and scope of the second act, that is, what happened with motive and from the provincial decree of 22 July 1941".
"The copy of the foil edict 9 gives notice - see its initial part and what is indicated in Article 1-, that the one now perceived as "Association-Associación Asesora" pretended to constitute the "Fundación Miguel Lillo", objective that does not appear to have been achieved as soon as the Governor's decree approved "the reform introduced to the Statutes of the Society 'Instituto Miguel Lillo'".
"The terms thus used imply that this second decree admitted the presentation only as a reform of the statutes of an already existing previous association (to which it called "society" and called "Instituto"), without giving birth to a new entity."
"By the fact that I have valued the possibility of interpreting that the way of receiving the order by the decree may have been the fruit of a mere improlijity. However, this hypothesis lacks walking as it becomes aware that they do not meet in the text published in the edict the elements that are essential to the existence of a foundation."
"In the first place, in the "reform of the statutes", the alleged founder .in the case of the Advisory Commission. has not made a concrete actual allocation of goods or a promise of them. The reading of the proposed article 6 warns that it is intended to allocate two types of assets:
A) "the revenues of money bequeathed by Article 5 of the Founder's Will." Two circumstances should be highlighted in this regard.
(a) The revenues, in terms of accessories of a principal (capital) donated to the National University of Tucumán, belong to it, without prejudice to the management that can be assigned to the "Associación-Comisión Asesora". For this and for the forecast of "nemo plus
iuris (art. 3270), there is no title for the transfer, it has not occurred.
(b) When they have identified the testator as "founder" they made an error, in no case can such quality be assumed in anyone who does not make a specific and current allocation of goods within the scope of article 1806 of the Civil Code.
B) As to the reference to "the subsidies or donations that the Commission obtains to fulfill the purposes of the Foundation or to constitute a permanent fund", not being expressly provided as a pledge of contribution, it does not become a mere programmatic clause that does not satisfy the recovery of the actual and actual allocation of goods. Giuntoli has said with precision that "The quality of the founder and the quality of the contributor are tiny: such that there can be no founder without contribution, if a contribution is made, it is founding, because the distinctive note is the formation of a heritage of affectation" (op. cit. p. 20).
C) It does not hinder the conclusion indicated in Article 8 as it prescribes that "The Foundation's capital consisting of titles or cash funds intended to produce revenues whose administration is entrusted to the Commission, must be deposited in an Account called Fundación Miguel Lillo", so that it is appropriate and necessary to make available the funds so that they can be administered".
"Secondly, the condition, proper to any foundation, is not respected, consisting of the fact that after obtaining legal status the founder must remain alien to the entity (conf. Llambías, op. cit. p. 155 and Giuntoli, op. cit. p. 20 and 23), which is easy to appreciate through various forms of ingerence that the Advisory Commission reserves in substantial aspects of the life of the entity (v. arts. 1, 6, 10 and 12)".
"Very likely this lack of attachment, and the already remembered absence of allocation of founding goods, is what explains that the decree of July 22, 1941 gave way to the new presentation in the way it did, that is, receiving it as reform of the same previous association and not as a foundation."
"3. In this regard, the conclusion has ended by flowing:
With the 1941 decree, a different entity was not born that functions as a "foundation". The same association, whose legal status was granted in 1935, did not vary its identity by the decree of 1941."
"It follows from this, on the other hand, that the name "Fundación Miguel Lillo" has the scope of being, merely, the chosen one to function by the "Association-Associación Asesora" as such, without responding to the true legal nature of it."
That in referring to the Nros Decrees. 25,253 and 14,729 of October 11, 1945 and May 23, 1946 respectively, the opinion of the TESORO PROCURATION says: "Continuing with the analysis of evolution it should be noted that on October 11, 1945 the national executive branch by decree 25,2553 formally ratified the acceptance made on March 16, 1932 by the Higher University Council of the National University of Tucumán of the legacy of Dr. Lillo.
"I cannot fail to make certain points to this decree.
First, note that in the "Visto" of the decree indicated that the "Fundación Miguel Lillo" had been created by testament being that this implies an affirmation that does not conform to the legal reality as, as I already expressed, the entity "Asociación Comisión Asesora" unauna unidad identical. was originally created by the sole will of its members after the testament. This visual angle is confirmed by the letter of the decree itself when, in its article 2o, it decides to entrust "to the Miguel Lillo Foundation, a vitality advisory commission".
"Secondly, note that the decree in question entrusted the "Michael Lillo Foundation" with the fulfillment of "all the testamentary clauses", a question that is at least unexpected in the meantime, obviously, this mission only and only competed with the University of Tucumán for the mere fact of being the recipe of the legacy, without prejudice to the allocation of powers to the already mentioned Advisory Commission to provide a legacy.
"In addition to the above, the fact that the National Executive Branch, through the decree in analysis, provided that the "Fundación" would act as an autonomous entity under the Ministry of Justice and Public Instruction, directly receiving the allocations or subsidies that were set out in the General Budget of the Nation (arts. 2nd and 4th), a solution that cannot be analysed, but from the admission of the fact that the State produced far from private, for a whole phenomenon".
"With regard to this absorption it may be reasoned that in the same act in which it was done, the "autarchical" entity was created and such a fact in itself did not violate Lillo's will. This phenomenon transformed the original private nature of the entity into public, and that fact was not questioned by any person since 1945 to the present, perhaps because no one saw contradicted but improved their interests."
"5. It was decree 14.729/46 dated 23 May 1946 that the regime applicable to the entity was completed (fs. 133/135)".
"This measure, apparently collecting similar expressions used in the University's Resolution of April 3, 1946 (copy at fs. 21/2 of the above-mentioned P. T. who is faithful to the fs. 105/6 of Exhibit 5486-R-945), in article 1 it stated that: "The Miguel Lillo Institute, which operates annexed to the National University of Tucumán under its control, constitutes a scientific body created by the donor for the purposes expressed in the testament" (the bold is mine).
"This dependence, expressly relegated by the decree, was also shared by the opinion of the then Procurator of the Treasury of the Petracchi Nation (Dictamenes 51:390)".
"At the same time, it is worth noting the perception that Decree 25.253/45 had of the "Lillo Foundation", in the sense that she and the "Advisory Commission", formed the same and identical legal entity, a conclusion that is also reached through the interpretation made in this opinion, well that it is settled in the consideration that there was a same "Asssociation-Assssociación Asesora".
"In order to the content of the new regime, it must be pointed out that, without mentioning the "Fundación", the new preceptive sought to establish rules for the functioning of the Institute and for its coexistence with those of the Advisory Commission".
"Thus, it was assigned the direction and administration of the scuestión Institute that deserves the preparations already presented and, to the Rector of the University, the faculty to attend the sessions to which it was convened, while the general scientific orientation of the Institute would be determined by the Honorable Higher Council and by the "Institution Advisory Commission" (arts. 2nd, 3rd and 4th). He also established that the Director of the Institute would be appointed by the Higher Council of the University of a Terna proposed by the Advisory Commission (art. 6o).
"By the fact that the testator never imagined that the Advisory Commission would have academic functions, you totally miss the management that if you trusted him. However, it must be admitted that this precept marks a significant change that in some way gives a new meaning to the extent that Article 3 of Decree 25.253/45 mentioned that the scientific and administrative direction was exercised exclusively by the "Fundation".
This is evidenced in the 6th of the decree of 1946 by establishing that the cultural aspect of the Institute of the financial-administrative faz of the same is thus perfectly defined, corresponding to the direction of the former, in joint form, to the National University of Tucumán and to the Advisory Commission and the second, only to the Advisory Commission, without prejudice to the knowledge that the University should have and the advice that it may provide to the Commission".
"Also, it is not undeniable to attend to the will of the executive branch that, by unraveling the legal situation existing in the second one, said textually: "That it has been the will of the testator not only to legate to the National University of Tucumán the building and other assets that would be part of the Institute but also that the Institute was not independent of the University and foreign to it, but an annex to the same question."
"This interpretation coincides with the ordinary use of the word "Annex" which, as illustrated by the Dictionary of the Royal Academy (edit year 1980), possesses the meaning of "united or added to something else with dependence on it".
"From the above, it can be followed that Decree 14.729/46 would have established a system in which the activities of the Advisory Commission and the University regarding the management of the Institute are closely linked and interrelated with each other (Conf. Dictamenes 201:184)".
"Finally, the Honorable Congress of the Nation through Law 12.935 gave the law value to both decrees, obviously, to the degree of compatibility provided by the second of them (fs. 130).
"According to this law and the previous decrees that ratified, "as well as decrees 3307/71, 1459/91 and 513/96 that will then be reviewed, the "Advisory Commission" was placed in the field of the executive branch preserving its existence. At the same time, it provided him with an important resource that precisely contributed to the fulfillment of the testamentary orders, without relying on original funds mumuy probably already exhausted or in transit of consunción". but assuming the state the heritage of the "Association-Commission" that it had formed as its own.
That in his opinion the PROCURATION OF THE NATIONAL TESORO acknowledges that "The regulations that have come to be presented exhibit, it should be admitted, an important degree of imprecision and improperity in the wording."
"It may be assumed that the idea of showing a legal person would probably have been born of needs that would have had "The Commission" for the capture and application of funds and a better performance of its financial economic management functions."
"As a result of this, it is the rule that the Commission's members imprinted the "Fundation" and its objectives, often assuming functions that the will had not foreseen or that directly corresponded to the National University of Tucumán".
"On the other hand, the transit of the "Association-Associación Asesora" ("Fundación") to the Public Administration, and the extreme that the legataria is an autarchical public entity that the Nation holds with funds of the Treasury, adds an important particularity in the analysis."
"The serene reflection on the facts that have been fulfilled has led me to assume that Law 12,935 and the normative vicissitudes that the Advisory Commission has had have been nothing but a variety of ways of credible writing to contribute to the fulfillment of the purposes of the legacy, preserving management separates from the funds affected at last."
"I cannot ignore the fact that the author of the analysed standards and the entity for which I am consulted are part of the National State. Nor that, today and surely for several decades, the "moneys and interests" of the great Lillo would have been exhausted, a circumstance that could come to suppose that the Advisory Commission might well have lost the function envisaged by the testator.
"In that line, the purpose of inserting the funds allocated by the National Budget cannot be interpreted but as another effort of the National State that joins the one already carried out through the games it provides through the University, perhaps with a bias of superposition worthy of another analysis."
"This additional support that is being carried out through the "Association-Associación-Comisión Asesora", although adjuvant and not provided in the testament, does not seem clearly discretionary to the State as long as it cannot be considered undue to provide the necessary funds so that it is possible to continue to fulfill the substantial position of the legacy, a circumstance that provides the moral reason that justifies the domain over the transferred assets."
That Act No. 24,629 adopted a set of rules aimed at improving the functioning and quality of services provided by the different jurisdictions of the National Civil Service and its financing.
That within the framework of the legal norm cited in the previous consideration of the HONORABLE CONGRESS OF NATION has delegated to the NATIONAL EXECUTIVE PODER the exercise of a set of administrative powers in order to carry out in its scope the reorganization of the national public sector to achieve greater efficiency and rationalization of the same through the modification, merger and transfer of decentralized agencies created by law.
It emerges in an express way from the testamentary will of Dr. Miguel Lillo, who has been his intention that the instituted legacy will be devoted to the formation of an Institute annexed to the NATIONAL UNIVERSITY OF TUCUMAN, Institute that bears its name and that since its creation, the MIGUEL LILLO FUNDATION has developed its activity related to the NATIONAL UNIVERSITY OF TUCUMAN.
That the Procurator of the Treasury of the Nation at the conclusion of his opinion in fojas 180 and 181 states that "1. As I already thought the will did not create a foundation, and the entity, as an association, was not born of the will but of the will of the members of the Advisory Commission who assumed that legal form for the better development of its purposes. "Advisory Commission" and "Association" are the same entity, then absorbed by the National State through a law that provided the structure of an entity with a high degree of decentralization."
"From this angle it can be perceived that, while the type "association" remains alien to the will of the testator, in that way today autarchical entity emptys the "Advisory Commission", its functions and its purposes.
"Therefore it must be reasoned that, as long as its existence and the functions provided for in the testament deo is preserved in the remedy that replaces it in case it is not operational ,, nothing prevents its modification, its "disincorporation" (see Decree 3307/71), or its relocation within the national public sector."
"2. These solutions, which leave inconclusive to the testamentary orders mandalas that are sufficient to maintain the Institute annexed to the University and an autonomous management of the funds "., should nevertheless always preserve this separate management, without prejudice to other contributors that the University can implement".
"And it is no obstacle, for the proposed amendment, to the provisions of the Higher Education Act No. 24.521 (B.O. 10/VIII/95), which, more than to prescribe that universities have academic and institutional autonomy (art. 29), assigns them competence to constitute legal persons, both in public and private law, or to participate in them (art. 59 (c. e). Thus, if such a rule grants universities the competence to create legal persons, they may be placed in their jurisdiction in decentralized entities already created, since for the National University of Tucumán such a phenomenon will be an acquisition of nature similar to a creation."
"3. Finally, I note that the power of the National Executive comes from the provisions of Act No. 24,629, entitled "Rules for the Execution of the Budget and Administrative Reorganization" (B. O. 8/III/96), whereby the exercise of administrative powers is delegated to the National Executive Branch, in accordance with Article 76 of the National Constitution, with the aim of reorganizing the national public sector and thus achieving greater efficiency.
"To complete these objects, it is stated that the President may, among other cases, centralize, merge and transfer to the provinces, after agreement with them, decentralized entities created by law (art. 8(1)).
"Insofar as the so-called "Fundación Miguel Lillo" has not, in itself, devoid of a testamentary command and is originally only the creation of the private will, then absorbed by the state by law 12.936, in my opinion there is no evidence to modify the jurisdictional location of the so-called "Fundación Miguel Lillo" and to arrange its incorporation into the National University of Tucumán.
"Tal temperament finds express grip in the mention of the faculties of "centralizing", "fusion" and "reorganizing", delegated to the National Executive by articles 7 and 8 of Law 24. 629, because in the meaning of these terms it is undoubtedly included the expression "jurisdictional relocation" or "transfer".
That by virtue of what is expressed and, for the purpose of meeting the objectives taken in view of the time of the dictation of Law No. 24.629, it is appropriate to transfer the MIGUEL LILLO FUNDATION from the sphere of the SECRETARIAT of Science and Technology of the MINISTERY of CULTURA and EDUCATION to the jurisdiction of the NATIONAL UNIVERSITY of TUCUMAN,21
That with this transfer, to the above-mentioned jurisdiction, results will be achieved that, far from being bound by the will of Dr. Miguel LILLO, will further endorse the object of the legacy and will obviously gain much more important achievements.
That the dictation of the present in no way implies the modification of the current organizational structure of the Foundation approved by Decree No. 513 of 14 May 1996, its objectives, primary responsibilities and actions, or the regulations governing the operation of the said entity, which are in full force.
That it is necessary to adapt the organigram of the organizational structure of the MINISTERIO OF CULTURA and EDUCATION by recepting the deletion of the entity that is transferred.
That the permanent legal service of the Ministry of Origin has taken the intervention of its competence.
That the present measure is issued in exercise of the powers conferred by Act No. 24,629.
THE PRESIDENT OF THE ARGENTINA NATION
RIGHT:Article 1 . Recover in the jurisdiction of the NATIONAL UNIVERSITY OF TUCUMAN, the so-called "MIGUEL LILLO FUNDATION", on which it will depend as an autocratic entity, deleting itself from the scope of the MINISTERY OF CULTURE and EDUCATION. Art. 2o . The relocation provided for in Article 1 of the present comprises organizational units with their respective competencies, positions, endowments, budgetary credits and assets. Art. 3o La The so-called "MiGUEL LILLO FUNDATION" will continue to act in accordance with the provisions of Decree-Law No. 14.729/46, ratified by Law No. 12.935, and what determines for the university framework Law No. 24.521 and complementary standards in all that is not subject to modification by the present. Art. 4o La The relocated entity and the NATIONAL UNIVERSITY of TUCUMAN will create a Joint Commission to adapt their institutional relations. Art. 5o . Replace Annex I to Article 7 of Decree No. 1274/96 GlobalGlobal Functional Organic Structure Global of the MINISTERIO OF CULTURA and EDUCATION, replaced by the Annex to Article 15 of Decree No. 1660 of 27 December 1996, by Annex I integrating this article. Art. 6th . Communicate, publish, give to the National Directorate of the Official Register and archvese. . MENEM. . Jorge A. Rodriguez. Susana B. Decibe.