The ruling of the Supreme Court of Justice "Cladd ITA SA" and its application to the relationship with insurers: an approach from the theory of own acts

1. Introduction: the issue at stake

Within the framework of the relationship between the customs administration and insurance companies that issued surety bonds to guarantee temporary import operations, there are frequent discussions regarding the enforceability of the insured items.

In this regard, one of the most recurrent controversies usually occurs when insurance companies seek the application of the precedent "Cladd ITA SA c/ EN – DGA resol. 2590/06 (file no. 604155/01) s/DGA (TF 22.343-A) (1)” (hereinafter “Cladd”). 

The defense they raise is related to the expiration of the authority the customs service had to collect value-added and income taxes, as provided by public tax law. Therefore, we must recognize that this circumstance implies, either explicitly or implicitly, raising a defense of "the insured," applying Article 1587 of the Civil and Commercial Code of the Nation. (2) (hereinafter "CCyC"). This is so, since the defense they raise is based on the assertion that "Since the fees are not payable to importers, they cannot be payable to insurers either.".

2. Starting point: the different legal nature of obligations 

Firstly, it should be clarified that the link between the importer and customs is based on public order regulations (tax laws and general DGI resolutions 3.431, 3.543, 2.937 and 2.281), while the link between the insurance company and customs is based solely on an insurance contract (a private instrument that is executed completely independently of whether the collection powers have expired or not, with respect to the principal debtor). 

That is, the legal nature of the credit is notoriously different -in both cases- and the ruling of the Supreme Court of Justice (in re "Cladd") -a priori- may not project on those obligations that arise from the surety insurance policies (the obligation will consist of honoring, through the payment of an "indemnity", concepts that having accrued had been suspended at the time of registration of the temporary import destination).

In this order of ideas, it is worth stopping to consider that in a a certain moment (e.g. at the time of registration of the temporary import destination), it would have been appropriate to pay these perceptions and, instead of paying them, they were guaranteed.

Consequently, the customs service does not have any power to collect from the insurance contract, it only claims “compensation” which comes from the contract.  

Note that "the relevant situation" for the insurer is at "that moment" (let's call it "the snapshot" at the time of registering the DIT) and, the action for collection, on the other hand, does not come from the tax regulations. but of a contract. 

Having established this, a question arises: having expired the power to collect the fees from the importer (by application of the CSJN doctrine "Cladd"): Can customs collect the stipulated compensation from the insurer?  

3. Ordering concepts

There is no doubt that, in these cases, the customs service's ability to demand the previously individualized amounts expires. 

However, the insurer would have collected a premium "uninterruptedly" and, furthermore, "would have never requested the release of the guarantee" (as would have been appropriate, according to current regulations, e.g. RG AFIP No. 3885/2016 or its predecessor).  

In this context, a question arises: would the insurer's conduct result in the return of the excess premium value (Article 34 of Law 17.418 and 1794 et seq. of the Civil and Commercial Code), would it imply an "implicit" waiver of the right to assert that defense (by applying the theory of own acts) or, perhaps, both?   

4. Relevant differences: the insurer always opposes the importer's defense

For the purposes of analyzing whether it has survived -as compensation arising from the insurance contract- the action for collection, I consider it useful to remember that while the importer pays perceptions, the insurer pays a “substitute compensation” (3).

Thus, the legal mechanism will be as follows: once non-compliance with the special regime has been verified (after the final import for consumption has occurred), customs will review Article 1101 of the Customs Code (hereinafter "CA") separately and individually, both the taxpayer (the temporary importer) and the insurer (guarantor). (4).

In a related sense, it should be noted that the surety insurance functions as a joint and several obligation and can be claimed from any of the debtors (art. 833 of the CCyC)(5), in addition to the right to bring a right of recourse that the guarantor may have (art. 840 of the CCyC)(6).

Therefore, I anticipate that the question will be the following: once non-compliance has been verified (definitive import for regular or irregular consumption), can customs demand from the insurer (through direct action) everything that unequivocally emerges from the content of the contract (payment of everything that was effectively guaranteed)?  

Thus, based on the fact that the obligation links are essentially different, the defense (of expiration of the right to collect) can only be based on the application of art. 1587 of the CCyC (that is, it is argued that if the possibility of collecting from the importer has expired, the possibility of collecting from the insurer would also have expired, because the insurer is subrogated in that defense of the importer) (7)). 

Obviously, it should be noted that the insurer cannot claim the expiration of the right to receive the DGA's payments as a self-defense, because its obligation (as substitute compensation) arises from a contract - and not from a direct tax relationship between the parties, which expires due to the application of rules governing taxation.  

5. The prelude to the conflict: the waiver of rights and the theory of one's own acts 

Let's start from the basis that certain rights can be waived. (8).

Therefore, by expressly assuming certain obligations - and then remaining silent regarding the change in status regarding the validity of said obligations - that party could be considered to have decided to exclude itself from the possibility of asserting certain defenses (there would be a tacit waiver, previously expressed unequivocally). 

When addressing the topic, we must delve into the theory of the actions themselves.

Dr. Alejandro Borda stated that “Silence plays an important role in Anglo-Saxon and German rights(9)" and explains that jurisprudence has been evolving on the so-called "estoppel"(10), in addition to the fact that in parallel the “laches” has been developing(11).

In that order of ideas, Laches seeks to protect the person who has relied on the appearance created by the situation generated by the passive attitude of the other subject.. 

The prominent jurist explains that "Acts carried out in a notorious manner in a certain place provoke the opposition of estoppel by fact in the country"(12); while voluntarily making people believe - through conduct or words - the existence of a certain order of things, which induces people to act in a certain way, prevents the person who has produced said order of things from claiming the nonexistence of such a state.(13).

These concepts force us to consider that "Acts performed in a notorious manner cannot be contradicted by their performer" (14).

To this we can add that “(…) estoppel by deed is a declaration made in a sealed document—and therefore a solemn act—that cannot be denied by the issuer of that declaration. That is, it makes a manifestation of will, assumes responsibility, and, consequently, cannot dispute the veracity of what is declared (…)”(15).

Prominent jurists have been outlining the characteristics of the doctrine in commentary, separating those cases in which solemnities are required from those in which they are not; however "Representation may arise through words or conduct. An example of the latter possibility is the acceptance of payment of the premium by an insurer who knows of grounds for challenging the validity of the policy. Attempting to challenge the policy once payment has been accepted may be blocked by estoppel by representation, or, in other words, estoppel by fact in pais, because the insurer cannot disavow its prior conduct, which was clearly exercised, such as accepting payment of the premium."(16).

As we can see, the solution given in the previous example responds to the ideas of legal appearance and representation; but a similar solution can be reached through the theory of one's own actions and the need to maintain consistent behavior. This rule has even been legislatively adopted in our law when, for acts similar to those indicated in the previous paragraph that are executed by the insurer (such as its participation in the expert procedure for assessing damages -Article 79 of the Insurance Law-) prevent the latter from being able to release itself from its liability on the basis of causes known prior to the accident.

The rule has been accepted by the National Chamber of Commercial Appeals of the Federal Capital (Bolsáagora), in its full ruling that the appointment of liquidators by the insurance company implies the waiver of the expiration of the contract, since a party who has accepted the late or incomplete execution of the obligation corresponding to the other party cannot be released from its obligation.

The vote of the previous speaker adds that this solution is applicable to all cases in which the insurer has observed conduct incompatible with the expiration that it later invokes and that it knew or should have known (“Caucholite SRL v. Patria Insurance Company”, Capital Commercial Chamber in full, 29-II-72, LL, t. 146, p. 58).

Finally, it should be noted that although the conduct or words must be voluntary, this It does not imply that the representation must have been fraudulent or knowingly false.; it is sufficient that the person who has received the manifestation of will has, in turn, acted by modifying the previous situation on the basis of the trust placed in that first manifestation of will. (17)

Argentina, already in 1927, in the case "The South American Stores Gath y Chaves v/ Province of Buenos Aires. SA Gath y Chaves v/ Province of Buenos Aires" (149:137), applied the theory of own acts.

In analyzing a case involving internal customs and taxes, the Supreme Court of Justice of the Nation explained: “(…) there are hypotheses in which a law in its application to a particular case must be sustained, because the party objecting to it, by a prior act, has excluded the possibility of being heard on its validity and, he adds, when a constitutional provision has been established exclusively for the protection of the property rights of citizens, they are empowered to waive that protection. Art. 872, Civil Code, Cooley, Constitutional Limitations, seventh edition, p. 250; On the Taxation, pp. 1495 and 1505, note 3, third edition. That the protest formulated by the company in the act of verifying the payment of the tax and when the facts determining the indicated waiver had already occurred, cannot erase or modify its effects. Art. 875, Civil Code. (…)”. 

To this we must add that the Supreme Court stated that Guarantees relating to private property may be waived by individuals express or tacitlyand that This occurs when the interested party carries out acts that, according to his own statements or the meaning attributed to his conduct, imply compliance with the provisions that may violate said guarantees. (Rulings: 255:216, Recital 3) or they imply the recognition of the validity of the law that is intended to be challenged (Rulings: 187:444; 275:235; 279:283 and their citations).

In this regard, the High Court concluded that an individual who - before the initiation of the trial - waived the right he claims cannot petition and obtain judicial control of the constitutionality of laws (Rulings: 249:51). 

Likewise, the Cimero Court expressed that the doctrine of one's own acts - built on a primarily ethical basis - serves to disqualify certain acts that contradict previous ones, since an opposite solution would mean diminishing the importance of conduct that is legally relevant and fully effective (Judgments: 327:5073; 325:1787; 323:3035; 316:3199; 316:1802; 316:397; 316:225; 307:1602). 

In this sense he maintained that the doctrine of one's own acts is a necessary and immediate derivation of the general principle of good faith, is recognized in our positive law, and finds support in “previous judicial or extrajudicial conduct”, which generate confidence in the person who issued them and arouse in the person seeking justice an expectation of coherent future behavior (Rulings: 326:3734). 

6. The insurance contract, the parties' own acts and good faith in the legal relationships of all parties

The insurance contract constitutes a legal act (Article 259 of the Civil and Commercial Code), and the voluntary nature of the act is the center of gravity of the legal transaction. Since the guarantee has not been withdrawn (or at least a letter of recommendation has been issued to the importer reducing the premium), can it be considered that there was an intention to discontinue the insurance?

Before answering this question, it should be noted that what has been called the process of "decoding" of private law, implies, according to Lorenzetti, the existence of legal "microsystems" and "subsystems", which are at the same level as the code, and although, making the comparison with the solar system, the code remains the sun, the microsystems are planets "illuminated" by the code, but which rotate with their own autonomy, accompanied by the process of "constitutionalization" of the same, according to which the codified order is replaced by a system of fundamental norms.(18)

Therefore, what governs the importer's tax obligation may not be consistent with the nature of the insurance obligation, and it may even be the case that prior conduct by the insurer makes it unrelated to the invoking of certain defenses.

The relationship between the parties is not exempt from the provisions of Articles 9, 961 and especially 991 of the Civil Code. These articles, in conjunction with Article 1011 of the Civil Code, reinforce the thesis that "The insurer must request the return (cancellation) of the guarantee or, if necessary, propose a reduction in the premium in a timely manner.".

That is, at the same time that you consider that –There is no risk covered - or that it has decreased -, it goes without saying that the party is obliged to communicate it (see art. 34 of law 17.418) so as not to harm the other party (e.g. customs, which believes it is insured). 

Note that only in this way would it be exercising its right in good faith (arts. 9 and 1061 of the CCyC), the conduct being consistent with the content of General Resolution No. 3885/2016 (AFIP), an administrative regulation that the insurer is aware of and implicitly agreed to abide by by adhering to the special regime.

Section III of Annex II of General Resolution No. 3885/2016 (AFIP) stipulates the release of policies without modifying the system of the repealed RG 2435/2008 (AFIP).(20)

Indeed, the regulations have not changed on this point, and regarding the release of guarantees, Article 11 of General Resolution 2435/2008 (AFIP) and Article 11 of General Resolution 3885/2016 (AFIP) provide the following: “(…) the cancellation and/or return of the guarantees will be carried out at the request of the taxpayer, responsible party, proponent or the guarantor or insurer itself, and provided that the main obligation and its accessories or, where applicable, the guaranteed regimes or operations have been fully fulfilled (…)”.

It should also be noted that, in accordance with the regulations governing insurance activity (Law 20.091 and the Insurance Activity Regulations (General Resolution SSN 21.523/1992 and its amendments), until the guarantee is released by the insured, it must remain in force, with the consequent impact on its balance sheet, reserves and reinsurance regime.(21)

The system comes from the figure of ancient Roman Law, which taught that one of the main causes of extinction of obligations by voluntary act of the creditor, without compliance, was the Acceptilatio, "consisting of a response from the creditor, who to the question of the debtor (habesne acceptum?), responded having received the payment (habeo)". Therefore, it is quite clear that While what gave rise to the guarantee is not fulfilled (the payment of the -amounts- corresponding to the taxes levied on the import for consumption determined "at the time of registering the DIT and guaranteeing"), the warranty is active and valid.

Under this legal framework, the insurer continued to accrue premiums for the entire time the policy remained "active."(23)

Thus, the interpreter of the law must reflect on the guarantee accrues a premium that “never decreases” during its term (the premium remained unchanged) and that This situation reveals that the risk initially assessed (payment of taxes, including perceptions) remained in force..

7. Interpretation of the insurer's conduct

Yes, at no time did the insurance company request the release of the policy, nor communicate the extinction or reduction of the risk, this is undoubtedly particularly relevant, because Article 34 of Law 17.418 provides that if the risk decreases, the premium must also be adjusted (since the insurance company does not inform customs that the risk has been extinguished or reduced, customs trusts that this risk is fully covered).

This conduct (failing to notify the importer and/or customs of the reduction in risk) allows a credit to be generated in favor of the insurer (the accrual of the premium), which is not only contrary to the principle that condemns unjust enrichment(24), but also betrays the legitimate trust that customs had in the insurance company.

Article 1067 of the CCyC provides: "Interpretation must protect the trust and loyalty that the parties owe each other, and any contradiction with legally relevant, prior, and inherent conduct of the same subject is inadmissible.". In turn, Article 1084, paragraph c) of the CCyC provides: “Configuration of the breach. For the purposes of termination, the breach must be essential in light of the purpose of the contract. It is considered essential when: (…) c) the breach deprives the injured party of what it substantially has a right to expect; (…)”. 

Accredited doctrine teaches "(...) trust is thus a new autonomous criterion for the creation of obligations whose only foundation is precisely trust (objectively reasonable), which based on a statement, behavior or appearance, gives rise to economic displacement of the consumer and causing damage, the breach of trust will constitute a factor of attribution objective (…)”. (25)

In the case analyzed, the insurer's attitude must be carefully assessed: it never required a readjustment, demonstrating that for it the risk remains unchanged and current.(26)

In the case analyzed, the insurer's attitude must be carefully assessed: it never required a readjustment, demonstrating that for it the risk remains unchanged and current.

This voluntary maintenance of coverage in the eyes of customs, with the resulting receipt of the premium (or at least the creation of a credit in its favor that it can later claim from its insured), would constitute "legally relevant conduct" by the insurance company, which could prevent it from claiming, at a later stage, the defense in question.

Another question then arises: could the absence of a request for release of the guarantee be considered a manifestation of the will through which the waiver of the analyzed defense has been expressed?

Let's see.  

Jurisprudence has said: “Proof of a tacit waiver of rights must be based on absolutely clear and convincing facts that reveal such intent beyond any doubt; it must stem from a set of circumstances that reflect it and be based on categorical facts.” (SCBA, 09/12/1980, “Salerno, Antonio v. Province of Buenos Aires”, AR/JUR/193/1980).(27)

In turn, the doctrine has said "If there is an essential element of the legal act that is the determining one, the one that constitutes the primary foundation that allows us to formulate the existence of the category of the Abdicative Act (as comprehensive of a whole series of apparently diverse legal acts), this is, precisely, its Final Cause."(28)

Consequently, it must be analyzed whether - by keeping the policy in force, the insurance company can (or cannot) invoke the expiration of the right to collect from customs (under the terms of art. 1587 of the Civil and Commercial Code) - or whether, eventually, the aforementioned defense is opposed by the "legitimate trust doctrine" and the "theory of own acts."

8. The theory of one's own acts as a limit to the defense of extinction

By derivation from the cardinal principle of good faith, every citizen has the right to consistent behavior, whether it be individuals or the State itself (Judgments: 318:2050; 312:1725). 

According to the doctrine of proper acts (nemo potest vinore contra factum proprium), Whoever has created a certain legal appearance with his behavior cannot then adopt a position contradictory to it, to the detriment of whoever legitimately trusted in that situation..

In the case, the insurer maintained the appearance of validity of the policy, allowing the accrual of premiums, without even promoting - administratively - their cancellation or extinctionFaced with this conduct, customs trusted that, if the incident occurred, the amount covered (including the fees) would be payable.

The duty of good faith (Articles 9, 961, and 991 of the Civil and Commercial Code), in conjunction with Arts. 1067 and 1084 (c), establishes the breach of "legitimate trust" as an independent factor in the attribution of liability. In turn, the criterion of "legitimate trust" is so deep-rooted and broad that it has also been considered for the purposes of regulating administrative relations. Therefore, it was incorporated by Article 25 of Law 27.742 (known as "Bases and Starting Points for the Liberty of Argentines") as a principle of administrative procedure, included in Article 1 bis of Law 19.549.

In this sense, invoking art. 1587 of the CCyC as an excuse for extinction - based on the importer's situation - would produce a contradiction flagrantly between the previously assumed conduct (charging to cover the risk) and then ignoring such conduct.

In the "Cladd" case, the Supreme Court of Justice of the Nation held that the Treasury loses the power to demand tax collections (VAT and Income Tax) once the legal deadlines established by tax regulations for filing the sworn declaration for these taxes (RG 3431/91 and RG 3453/9) have expired. 

This doctrine has been developed in relation to the link between customs and the importer (Cladd ITA SA), without prejudice to the fact that the Supreme Court of Justice of the Nation also applied it in the case "Aseguradora de Créditos y Garantías SA v. DGA s/ direct appeal from an external body" (CAF 18074/2016/CS1-CA1).(29)

At that time, the Supreme Court automatically applied legal logic, without considering that while the legal relationship between the importer and customs is governed by public law (such as tax laws and general resolutions), the relationship between customs and insurers is very different, based exclusively on a surety bond. 

It failed to note that this is a legal relationship, even though it is in favor of the State, of a private nature (arising from the contract), autonomous, the fulfillment of which depends on the risk assessed "at the time the policy was issued" and that, on the other hand, the policy was found to be in force (by not requesting the return of the policy, the insurer allowed the premium to continue being generated, even when tax regulations denigrated the power to collect).

Basically, it also failed to analyze whether the theory of own acts could be raised to neutralize the defense of the insurer (which collected or allowed a premium to accrue to respond to that situation).

What this means is that the Supreme Court of Justice has already made a statement, or not... will it not be able to analyze this issue in more depth in light of these new arguments? 

The answer is negative, in fact, it is well known that judges can deviate from the precedents of the Supreme Court of Justice if "They provide new arguments that justify modifying previously held positions" (argument from Failures 347:1386, 345:1387, 345:123, 344:3625, 344:3431, 344:3156, 342:2344, 342:1903, 342:584, 341:1372, 334:139, 332:616, 331:1596, 331:379, 330:4040, 330:3801, among many others).

In the case “Volkswagen Argentina SA (TF 22.179-A) v. DGA”, decided on August 23, 2011, the High Court had approved the collection of VAT and Income Tax (although in pesos), and then, after the ruling “Cladd ITA SA v. EN – DGA resol. 2590/06 (file no. 604155/01) s/DGA (TF 22.343-A)”(30), revoked them. 

The situation, in fact, was technically the same.

In “Volkswagen Argentina SA (TF 22.179-A) c/ DGA” resolution DE PLA 2.296/06 had re-liquidated a series of charges for import operations carried out in the years 1995 (that is, the powers to collect would have expired according to the “Cladd” doctrine in 2006) and the CSJN itself thus reinterpreted its consolidated jurisprudence.  

I reinterpret it because the approach was different (novel approach).

Therefore, before applying the “Cladd” precedent to the guarantor, it is mandatory - and legally relevant - analyze whether this defense can (or not) be opposed by the insurer, which remained as a provider (at least apparent) of an insurance service, allowing the premium that it has the right to collect to accrue. 

10 conclusion

In the case analyzed, the insurer kept the surety bond in force, did not request its release, and continued collecting (or at least allowing) premiums to accrue. 

All of this constitutes conduct that has binding legal effects.

One of the first lessons we learn in law is that no one is entitled to assert a right in contradiction to his or her prior conduct, when that (prior) conduct, objectively interpreted, justifies the conclusion that a right will not be asserted. 

So, what should prevail: a general principle of law (such as the theory of own acts) or a defense (only for the importer), based on Article 1587 of the Civil and Commercial Code.   

Since the punitive issue (the infringement) is not analyzed in this case, I understand that the system of "dialogue of sources" must be applied to interpret the rules, which requires taking into account "the theory of own acts", "the principle of good faith" and "the doctrine of legitimate expectations", before validating a defense (mechanically) based on the alleged extinction of the obligation due to the passage of time, applicable to the case only in the terms of art. 1587 of the Civil and Commercial Code and unrelated to the contractual nature of the relationship.

In this regard, it is worth remembering that Articles 1 and 2 of the Civil Code (CCyC) establish that the Argentine legal system is not limited to the law, but that interpretation must take into account the National Constitution, the Treaties of 75, paragraph 22 of the CN, as well as its principles and values, thus reinforcing the interpretative openness by analogy and systemic coherence. In turn, Article 3 of the CCyC reproduces the content of Article 15 of the repealed Civil Code, but goes further, adding that “…the decision must be reasonably justified”, without specifying in what. 

The guidelines for interpreting the law lead me to the conclusion that the solution to the case under analysis must be reasonably based on "current law" (although always consistent with constitutional values ​​and norms, as explained) but also taking into account "the proven circumstances of the case." 

Undoubtedly, if a subject's prior and relevant conduct demonstrates a position on an issue that can in turn generate trust in the creditor of an obligation, it is unacceptable for the subject to disregard the trust it generated in the counterparty. 

In this context of interpretation, the theories of "one's own actions" and "legitimate trust" must be considered strengthened, and the judge cannot ignore "the proven circumstances of the case" when applying the law. 

So, if the insurer, a true professional (Article 1725 of the Civil Code), did not state in advance that the coverage was reduced—or even terminated—and maintained a policy that entitles it to receive the premium, it cannot, then, after the loss occurs, disregard the scope of everything it guaranteed (thus betraying the customs' trust in the insurance professional). 

My conclusion is that the theory of own acts imposes on the judge to examine if the person invoking the defense has not previously engaged in conduct incompatible with his current claim. 

It's not lost on me that the insurer will pay what "the importer owes," and that was always the content of the contract, the limit. 

However, it should be noted that the fees were accrued in a timely manner (upon registration of the DIT) and are owed... what eventually expired was the power of customs to demand them from the importer alone.  

Therefore, the situation of the importer and the guarantor is not identical, and to maintain that it has always been the same, the insurer must be required to prove that it has requested the return of the policy in a timely manner or, at least, that it has informed the importer (formally) that the premium was reduced by excluding the collections.  

In this context, I consider that by applying the "theory of own acts" and "for reasons of legitimate expectation," the defense based on Article 1587 of the Civil and Commercial Code (CCyC) cannot be opposed to customs, which only requires the cancellation of the concepts guaranteed in the DIT (Taxpayer's Digest), having granted the release of the merchandise for that same reason (because everything was guaranteed following the regime of the CA and General Resolution No. 3885/2016 (AFIP).     

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1.  The sentence was handed down on November 26, 2019.
2. Article 1587 of the CCyC provides: “Defenses. The guarantor may raise all of his own exceptions and defenses and those applicable to the principal debtor, even if the latter has waived them.”.
3. The insurer pays compensation to financially compensate the policyholder for damages suffered due to a risk covered by the policy; it does not pay taxes because it is not subject to tax liability.
4. This position is confirmed by the ruling of the Third Chamber of the National Court of Appeals in Federal Administrative Litigation, which stated: "(…) it must be stated that Customs, in its capacity as Insured or creditor in the event of non-compliance by the policyholder (the importer) is not obliged to comply with any requirements other than the determination of such non-compliance. Thus, the DGA has direct action against the insurer when the aforementioned loss situation, to which the policy refers, occurs (…)”  (CREDIT AND GUARANTEE INSURANCE COMPANY (TF 15600-A) CAF 7333/05, ruling of 11/12/2009).
5. Art. 833 of the CCyC. “Right to collect. The creditor has the right to demand payment from one, several, or all co-debtors, simultaneously or successively.”.
6. Art. 840 of the CCyC “Contribution. The debtor who makes the payment may recover it from the other co-debtors according to their respective shares in the debt. The right to recover is not available if the debt has been remitted free of charge.”.
7.  By “subrogation” we mean that one person or entity (such as an insurance company) assumes the right of another person (importer) to defend itself.
8.  This was stipulated in Article 875 of the Civil Code, and its content is subsumed within the general principles that regulate valid legal acts (Articles 958 and 1013 of the Civil Code), and the waiver of rights (Article 386 of the Civil Code).
9. Borda, Alejandro “The theory of one’s own acts”, Edit Abeledo Perrot (2005), p. 111.
10.  The idea is linked to the old concept of “estoppel” in Anglo-Saxon law, which emerges from the thought of Sir Edward Coke, when he states the following “…estop cometh of the French word estoupe, from whence the English word stopped: and it is called an estoppel or conclusion, because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead…” (Institutes of the Laws of England or aCommentaries on Littleton, 19th ed., 1832, vol. II, s. 667, 35th, published in 1628. See also Tatsiana Ushakova, “On the application of the principle of estoppel in ICSID practice”, Arbitration, vol. VI, no. 2, 2013, pp. 335–375).
11. According to Borda, "This figure is a type of estoppel that occurs when the manifestation of the true legal situation or the exercise of the right by its holder is carried out with a negligent delay that can be reasonably interpreted as tacit consent to the situation created and, consequently, that the right will not be exercised" (Borda, Alejandro "The theory of own acts", Edit Abeledo Perrot (2005), page 112.
12.  Diez Picazo Ponce de León, Luis, “The Doctrine of One's Own Acts, a Critical Study of the Jurisprudence of the Supreme Court”, Edit. Bosch Casa Editorial, Barcelona (1963), p. 76.
13.  Borda, Alejandro “The theory of one’s own acts”, Edit Abeledo Perrot (2005), p. 37.
14. Borda, Alejandro “The theory of one’s own acts”, Edit Abeledo Perrot (2005), p. 37.  
15. Borda, Alejandro “The theory of one's own acts”, Edit Abeledo Perrot (2005), pp. 39/40
16.  Borda, Alejandro “The theory of one’s own acts”, Edit Abeledo Perrot (2005), pp. 37 and 38. 
17.  Diez Picazo Ponce de León, Luis, “The Doctrine of One's Own Acts, a Critical Study of the Jurisprudence of the Supreme Court”, Edit. Bosch Casa Editorial, Barcelona (1963), p. 81.
18. Lorenzetti, Ricardo L., “The fundamental rules of private law”, Edit. Rubinzal Culzoni (1995), p. 14.)
19.  Art. 991 of the CCyC “Duty of good faith. During preliminary negotiations, even if no offer has been made, the parties must act in good faith so as not to unjustifiably frustrate them. Failure to comply with this duty entails liability to compensate the affected party for any damages suffered by having relied, through no fault of their own, on the conclusion of the contract..
20. This regulation determined the procedure for release in Annex III (Electronic Policies), which also refers to the Resolutions of the National Insurance Superintendence No. 30711, 31.584 and 31.776.
21.  CNCom., Room "C", 22-4-77, ED 76-607; SILVA GARRETON, Alberto Julio "Surety Insurance", www.eldial.com.ar, insurance supplement, 31-03-2005.
22.  Arguello, Luis Rodolfo, “Manual of Roman Law – History and Institutions,” Edit. Astrea, 3rd Ed. (1988), p. 386
23.  It should be noted that insurers generally do not provide proof of having refunded—or at least sent a certified letter—reducing the premium value during the dispute settlement process at customs, the Federal Tax Administration Service (TFN), or the Federal Customs and Customs Administration (CAF). This fact can be assessed in the proceedings under the terms of Article 163, paragraph 5, paragraph 2 of the Code of Criminal Procedure.
24. Art. 1794 et seq. of the CCyC.
25. Celia WEINGARTEN and Carlos A. GHERSI, “Treaty on Reparable Damages. Civil and Commercial Code of the Nation” Edit. La Ley, 2nd updated and expanded edition” (2017), Volume I, p. 372.
26. The jurisprudence has said “(…) the professionalism of one of the parties in the provision of a service generates legitimate trust in the other based on experience and technical aptitude (…)” (Judges DIAZ CORDERO and BARGALLO. Case “LORENZINI DE MARTINI, LUCIANA C/ VIAJES ATI SA S/ SUMMARY.”, judgment of 03/10/2008, of the CNACom., Chamber B. in the same sense file N° 30620/2011, case “FIELD TAMARA AND ANOTHER C/ EDITANDO SRL S/ ORDINARY” (LL 24.8.16, Fº 119.460), judgment of 07/05/2016 of the CNACom., Chamber B)
27. Also: C3ªCiv., Com., Mines, Peace and Tax Mendoza, 05/05/2000, «Domínguez, María Eugenia and Another v. Gubelco SRL s/Execution of Fees», Lexis No. 33/2178. CNCiv., room BC, 02/23/1960, «Seiffer, Wagner SA v. Oriente de Lefosse, María and others', LA LEY, 100-766).
28. Ossola, Federico Alejandro, “Treatise on the Renunciation of Rights and Obligations,” La Ley Publishing House (2012), p. 104.
29. The sentence handed down on November 26, 2019 said “That the issues under discussion find an adequate response in the doctrine emanating from case CAF 22930/2009/CA1-CS1 «Cladd ITA SA (TF 22.343-A) c/ EN DGA resol. 2590/06 (expte. 604155/01) s/ Dirección General de Aduanas», judgment of the date, to whose grounds it is appropriate to refer, where relevant, for reasons of brevity (…)”, with the vote of the current ministers of the Supreme Court of Justice, Drs. Horacio Rosatti, Carlos Rosenkrantz and Ricardo Lorenzetti.
30.  The CSJN itself cites in its ruling the case “Volkswagen Argentina SA (TF 22.179-A)”.