Non-Existent or Unenforceable Debt in Consumer Relationships: A Contemporary Legal Analysis

Theoretical Framework, Regulatory Update, and Practical Application

0. Methodological Note and Authorship (Law 11.723, Arts. 10 and 11)

This work constitutes an original piece of doctrinal synthesis, regulatory updating, and critical analysis, carried out for scientific and educational purposes. The fundamental legal doctrines have been extracted, systematized, and commented upon in full exercise of the right to citation and analysis provided for in Article 10 of Law No. 11.723 on Intellectual Property, based on the following source works:

• Facioni, Sebastián P.: "The Theory of Inexistence and Its Link to the Pillars of the Process. Legal Certainty and Preclusion". Published in: La Ley Buenos Aires (LNBA) 2008-3-286. (Cite as ABELEDO PERROT No.: 0003/800492 / 0003/800493).

1. Conceptual Foundations: The Theory of Inexistence

The notion of legal inexistence of an obligation stands as a fundamental pillar when payment for a service is demanded without a valid contractual relationship. As highlighted by procedural and civil doctrine, inexistence is a natural and logical category that prevails over the norms themselves. Unlike nullity, which presupposes an act that existed but suffers from correctable or confirmable defects, inexistence is based on the premise that the act was never formed due to the absence of an essential element (such as consent or a signature), thereby lacking any legal effect whatsoever.

In the field of consumer law, this situation is aggravated when the alleged debtor is subjected to abusive collection practices. If the company cannot prove valid consent (e.g., an authentic signature, biometric verification, or a contracting recording), the contract is legally non-existent. The principle of objective good faith (Arts. 9 and 10 of the CCyCN) imposes a standard of diligence on companies that includes the prior and certain verification of the link's existence before initiating any collection action.

This substantial inexistence possesses a crucial feature in consumer law: it is not subject to statutes of limitations and incapable of ratification. Unlike what occurs in the purely procedural realm—where preclusion and res judicata may prevent the review of procedural acts (as Facioni notes in his analysis of legal certainty)—in consumer law, the doctrine of estoppel (actos propios) operates against the company: one who initiates collection efforts without verifying the link generates legitimate trust that cannot be betrayed later by invoking the validity of a non-existent contract.

2. Methodological and Regulatory Development (2026 Update)

The applicable regulatory framework has undergone significant consolidation as of August 2026. The Civil and Commercial Code of the Nation (CCyCN) establishes in its Article 726 that "there is no obligation without a legal cause, that is, without deriving from some fact suitable to produce it, in accordance with the legal system." If the suitable fact (the contract) is non-existent, the obligation lacks a cause.

Regarding evidentiary matters, the article applies a criterion that harmonizes procedural doctrine with consumer protection. While the general rule imposes the burden of proof on the party alleging inexistence, Article 53 of Law No. 24,240 establishes a specific evidentiary regime: providers are obligated to provide all evidentiary elements in their possession. Therefore, it is the collecting company that must demonstrate the suitable fact (the valid and signed contract), and not the consumer who must prove inexistence (a negative fact), thus reversing the dynamic burden of proof in favor of the user.

Law No. 24,240 on Consumer Protection guarantees in its Article 4 the right to adequate, clear, and detailed information. The failure to provide documentation proving the contract prevents the claim from being legitimate. Complementarily, Article 40 establishes joint and several liability in the chain of commerce, a concept that case law has extended pro homine to encompass collection agencies.

At the provincial level, the Code for the Implementation of Consumer Rights of the Province of Buenos Aires (Law No. 13,133) reinforces these guarantees, granting local authorities (Municipal Consumer Information Offices, or OMICs) the power to sanction unfair commercial practices and protect consumers in Buenos Aires from intrusive collection methods, in line with the Civil and Commercial Procedural Code of the Province of Buenos Aires, which guarantees access to swift and effective justice.

3. Case Studies and Practical Application

Legal theory comes to life in the resolution of concrete conflicts. Below are verifiable practical scenarios that illustrate the application of the principles set forth:

• Case A: Identity Theft in Telecommunications. A user receives claims for a mobile phone line with a prefix from another province that they never contracted. The company cannot produce a contract with an authentic signature or biometric records. Legal Basis: Inexistence of the act due to lack of consent and manifestation of intent (Arts. 260, 262, and 288 CCyCN). The company is liable for moral damages and harm to credit reputation.
• Case B: Bulk Debt Assignment Without Verification. A collection agency acquires a database "in bulk" and begins demanding payment. When requested, it cannot prove the chain of credit transmission or the detailed account statement. Legal Basis: Arts. 4, 14, and 16 of Law No. 25,326 (Personal Data Protection) and Arts. 4 and 53 of Law No. 24,240. The processing of inaccurate or inadequate data generates autonomous liability, and the burden of proving the legitimacy of the data falls on the manager.
• Case C: Telephone Harassment and Violation of Privacy. Repeated calls at untimely hours, to family members, or at the workplace, after having sent a Formal Notice Letter requesting cessation. Legal Basis: Article 8 bis (Dignified Treatment) and Article 1770 of the CCyCN. Case law has considered that the mere frequency and persistence of the calls constitute an injury to privacy susceptible to financial compensation.

4. Implications and Scope: Liability and Data

Liability for the collection of a non-existent debt is extra-contractual (tort-based) in nature, as there is no valid link. However, Law No. 24,240 operates as a matter of public policy. Under Article 1753 of the CCyCN, the principal company bears strict liability for damages caused by its employees or subcontracted collection agencies, and cannot exempt itself by arguing that the management was delegated. Complementarily, the pro homine interpretation of Article 40 of Law No. 24,240 has been judicially extended to encompass those managing collection on behalf of the brand.

Regarding data protection, Articles 14 and 16 of Law No. 25,326 grant the right of rectification and suppression (via a Habeas Data action). Likewise, it is appropriate to demand the preservation of traffic records. Although Article 45 ter of Law No. 19,798 was declared unconstitutional in its general application (Argentine Supreme Court, "Halabi" ruling), it subsists as a particular duty of evidence preservation derived from good faith, Article 53 LDC, and the right of defense in court, preventing companies from destroying the identity and traffic records that prove the impersonation or inexistence.

5. Practical Section: Model Formal Notice Letter (Carta Documento)

Looking to the future, the regulation of debt collection will face the challenge of automation through Artificial Intelligence. In the meantime, formal notification via a Notice Letter (Carta Documento) remains the ideal procedural tool to place companies in default, cut off the collector's good faith, and generate the necessary documentary evidence for potential litigation.

📚 Links of Interest

• Civil and Commercial Code of the Nation (Updated text)
• Law No. 24,240 - Consumer Protection (Updated text)
• Civil and Commercial Procedural Code of the Province of Buenos Aires
• Law No. 13,133 - Code for the Implementation of Consumer Rights (Province of Buenos Aires)
• Law No. 25,326 - Personal Data Protection