Commercial lease guarantees: what your company is exposed to

When a landlord (locador) asks for a guarantee, they want someone to answer for unpaid rent and the penalties written into the contract, and for the property to be returned as agreed. The Code does not rank these guarantees or score them. It only sets how they work once signed. A useful comparison asks three things: who answers, with what they answer, and which document you sign.

For a company the choice also decides which paperwork you produce. A partner signing a personal surety, the balance sheet an insurer reviews and a property pledged as mortgage are not the same commitment, and none of them ends the day you sign the lease.

The lease questions around the guarantee (term, currency, rent updates, permitted use) are covered in the commercial lease contract guide.

A fianza is the contract by which one person (the fiador, or guarantor) commits as an accessory obligation to satisfy a performance if the main debtor defaults (article 1574). In a commercial lease it may be required from a partner, a director or the company itself, and it must be agreed in writing (article 1579). Whoever signs is not vouching for a plan. They are committing their own assets for someone else's debt.

The Code distinguishes three ways of signing and they do not carry the same weight. A simple guarantor keeps the benefit of excusión: the creditor can only claim against them once the company's assets have been executed, and only for the unpaid balance (article 1583). A solidary guarantor answers from the start, but only when the surety says so expressly or when the guarantor waived excusión (article 1590). And anyone who commits as principal payer (principal pagador) is a solidary debtor even if the document calls them a guarantor (article 1591).

Excusión has exceptions worth knowing. It does not apply if the company filed for concurso preventivo (reorganization) or was declared bankrupt, if it cannot be sued in Argentina or holds no assets here, if the surety is judicial, or if the guarantor waived the benefit (article 1584). Payment also cannot be demanded from the guarantor before the term granted to the company, unless agreed otherwise (article 1586).

How far the exposure reaches is set by article 242 of the Code: all the assets of a debtor answer for their obligations and form the common guarantee of their creditors, except those the law declares exempt from seizure. And the surety does not stop at the rent. Unless agreed otherwise it covers the accessories of the obligation and the reasonable costs of collection, including court costs (article 1580). A guarantor who pays steps into the landlord's rights and can claim back from the company what was paid, with interest from the day of payment and the damages suffered because of the surety (article 1592).

Two limits protect whoever signs. Their performance must be equal to or lighter than the main debtor's performance, and if the surety made it heavier the surety is reduced to those limits (article 1575). And every general surety must state a maximum amount, does not extend to new obligations the company takes on after five years, and if open-ended in time it can be withdrawn for new obligations after notification to the creditor (article 1578). With several guarantors each answers for the share they took, and if nothing was agreed, in equal parts (article 1589).

Under a seguro de caución an insurer answers to the landlord for your company's default. It is a regulated product: the Superintendencia de Seguros de la Nación (SSN, the national insurance regulator) approves the general policy conditions for lease suretyship insurance. In Resolution 376/2020 the SSN records that the conditions approved under resolutions 13.760 and 13.841, both from 1977, and 23.083 from 1994, for the Seguro de Caución para Garantías de Alquileres, remain useful for leases of property with destinations other than housing, which is the case of an office or a retail space. The conditions approved in 2020 cover housing leases.

The policy has two sides. The tomador is your company, which takes it out; the asegurado is the landlord. La Segunda advertises coverage for unpaid commercial rent and agreed penalties, subject to the limits in the particular conditions, plus replacement of the security deposit. That is this insurer's offer, not universal coverage. Request the general and particular terms of the commercial product being quoted. Identify the insured sum, sublimits and any adjustment mechanism during the lease.

A payout is not automatic. Before accepting a commercial policy, check the default that triggers a claim, the demands and notices the landlord must deliver, the documents the insurer requires, the payment period and exclusions. The housing annex to Resolution 376/2020 does not supply general commercial lease terms. Also review the counter-guarantee your company signs and what the insurer may recover after paying: taking out insurance does not cancel the rent debt.

To review an application, the insurer asks for a file that describes the company: information on the obligation to be guaranteed, the tomador CUIT (tax ID) for a credit background check, the latest balance sheet, and the company bylaws or constitutive agreement. For an individual it asks for a statement of assets (manifestación de bienes), and warns that it may request more information on the risk. Ask for a written quote with the premium and the particular conditions, and compare the total cost against the cash deposit requested instead.

A garantía propietaria is a fianza given by whoever owns real estate. La Segunda describes property guarantees as those usually required to formalize a lease, and presents its surety insurance as a replacement. In legal terms it is still a surety, with everything in the section above: excusión, maximum amount, collection costs and subrogation.

What changes is what stands behind it. A guarantor may give security for their own surety (article 1575). If a mortgage (hipoteca) is also granted, it adds to the personal promise a real security right: a real security right over one or more identified properties that stay with their owner, giving the creditor pursuit and preference to collect the secured claim from the proceeds (article 2205).

A mortgage takes registry form. It is granted by public deed unless a specific law says otherwise (article 2208), the property must be identified by location, measurements, surface, boundaries and registry and cadastral data (article 2209), and the effects of registration last thirty-five years unless renewed before then (article 2210). If several people own the property, each co-owner can mortgage only their undivided share (article 2207).

Before accepting it, distinguish a surety alone from a surety backed by a mortgage. A mortgage adds a real security right over that property, through a public deed and registration; it does not by itself limit the personal surety or release the guarantor's other attachable assets. Check separately whether the contract contains a valid express limitation of liability and what it covers.

A deposit is the simplest guarantee: your company hands over cash from day one. Article 1196 of the Code, in the wording in force since 30 December 2023, says the parties may freely set the amounts and currency delivered as surety or security deposit, and how they are returned at the end of the lease. There is no legal percentage and no floor. Whatever the contract says rules.

The same article leaves the payment intervals to the parties, but payment periods may not be shorter than one month. Article 1208 completes the picture: if the contract is silent, rent for real property is paid in advance, month by month. When a landlord asks for several months up front, that is negotiated as part of the contract, with its date and its return terms in writing.

Two details that get lost in negotiation. A security deposit and prepaid rent are different things under the contract: state what each one is applied to at the end, and in which currency it returns. And if a representative signs for the company, article 1191 requires express authority to collect rent in advance for more than three years. The first-year numbers for a space, deposit, fees and prepayments, are in the real cost of renting an office guide.

A bank guarantee is a document issued by a financial institution authorized by the Banco Central de la República Argentina (BCRA). Financial Entity Law 21.526 lists aval (payment endorsement), fianzas and other guarantees among the operations these institutions may perform: investment banks and finance companies have them enumerated, and commercial banks may carry out every operation the law or BCRA rules do not prohibit.

The catch is that the law does not define what the document you sign is called. It may be drafted as a fianza, carrying the Code defenses, excusión, the debtor's time to pay and the debtor's exceptions, or as a payment commitment with other rules. What triggers payment, whether the landlord must demand first, which amount is covered and what the bank may claim from your company afterwards all live in that text, not in the product name.

Ask which company documents the institution needs and what your company signs in exchange for the guarantee. That second document, between your company and the bank, is the one that rules what the bank may claim after paying, and it is worth reading together with the guarantee before you hand it to the landlord.

Each guarantee asks for its own file, but the core is the same: documents that prove who the company is, who represents it, and where its finances stand.

1. Company bylaws or constitutive agreement

   It is the instrument the company was constituted by, and Law 19.550 requires it to state, among other data, a precise and determined corporate purpose (article 11). The company is considered regularly constituted only upon inscription in the Registro Público de Comercio (Public Commerce Registry) (article 7).

2. Appointment of authorities

   Every appointment or removal of administrators must be registered and added to the company file, and published for SRLs (limited liability companies) and corporations (article 60). Minutes of collegiate bodies are kept in a special book or a legally permitted digital record, and board minutes are signed by those attending (article 73).

3. Latest balance sheet and financial statements

   SRLs whose capital reaches the amount set by article 299 section 2 and corporations must file annual financial statements (article 62), with copies of the balance sheet and statements available to partners at the registered address (article 67). The insurer asks for the latest balance sheet when reviewing a surety application.

4. ARCA registration certificate

   The constancia de inscripción issued by ARCA (the federal tax authority) reports the CUIT (tax ID), the name and the taxpayer status for income tax, VAT and the monotributo simplified regime with its category, plus whether the person is a company member and an employer. Fields may be blank where data is missing or inconsistent. It is the document that identifies the company or the monotributista before the landlord and the insurer.

5. Signature and authority

   A representative acting for the company binds it for all acts that are not notoriously foreign to its corporate purpose, subject to the scope and exceptions in article 58. Where representation requires multiple signatures, check the applicable regime; internal restrictions and liability for breaching them do not disappear. Signing a personal surety adds an obligation of the signer, separate from their role at the company (article 1574).

For a monotributista or a self-employed professional the file changes shape: the insurer asks for a statement of assets, and the ARCA certificate shows the monotributo category. No law fixes a complete list, and each landlord and each insurer asks in writing for what they want to verify.

The most expensive mistake shows up when the lease is renewed. Article 1225 of the Code says the guarantor's obligations cease automatically when the lease term expires, except for any arising from not returning the property on time. For the guarantor to stay bound through a renewal or extension, express or implied, their express consent is required.

A general surety carries its own clock: it does not extend to new obligations taken on after five years from being granted (article 1578). Surety insurance lasts for the period set by the chosen commercial policy. Check its expiry, renewal process, premium, required notices and how release of the insurer is documented. Do not assume automatic annual renewal from housing policy conditions.

When renewal arrives, look at three dates together: the lease term, the guarantee expiry and the policy period. Renewing the lease without fresh consent does not extend the original surety, except the obligation arising from failure to return the premises on time, and renewing the policy without raising the insured sum leaves the ceiling where it was. If the lease is amended while it runs, the deal between landlord and tenant cannot change the insurer's rules without the insurer's consent.