Article 772 of the Commercial Code establishes that the Negotiable Invoice is a negotiable instrument that the seller or service provider may issue, deliver, or send to the buyer or beneficiary of the service. These invoices are the common denominator with which companies carry out the sale of their products or the provision of their services, where once a request is made by the client, the merchandise is sent, along with the corresponding invoice for it to be accepted and returned.
For the law, these procedures are simple and standardized, but in practice, these things do not happen that way. On this occasion, we will mention a ruling of the Constitutional Court that highlights a common error in Negotiable Invoices, which companies still commit today.
Before starting, it is important to recall the necessary elements that a negotiable invoice must contain. Article 774 of the Commercial Code mentions that the requirements are:
- The due date, where if not stipulated, it shall be understood that it must be paid within thirty calendar days following issuance.
- The date of receipt of the invoice, indicating the name, or identification, or signature of the person in charge of receiving it.
- A record must be made in the original invoice of the payment status of the price or remuneration and the payment conditions.
On the other hand, Article 621 of the Commercial Code establishes the following requirements for negotiable instruments in general:
- The mention of the right incorporated in the instrument.
- The signature of the person who creates it.
In addition to what is set forth in Article 617 of the Tax Statute, these requirements are essential for an invoice to be enforceable, in case the debtor does not make payment in a timely manner.
Now, in Ruling T-727 of 2013, the Constitutional Court reviewed a case in which a company filed an enforcement action for the collection of twenty-two Negotiable Invoices. Once the lawsuit was admitted and notified, the legal representative of the defendant party answered the complaint and raised defenses, stating that the invoices omitted the minimum requirements that the instrument must contain and that the law does not expressly supplement, since none of the invoices bear the signature of their creator and none of the invoices have been accepted by the defendant company, among other things.
After certain procedural steps, the case was reviewed on appeal by the Superior Tribunal of Medellín, and then by the Supreme Court of Justice in a tutela proceeding. In reviewing the aforementioned matter, the Supreme Court considered that "the prior printing of its corporate name on the form of each invoice does not align with the provisions of numeral 3 of Article 621 of the Commercial Code, in conjunction with Articles 826 and 827 thereof, insofar as the letterhead does not correspond to a 'personal act' to which the intention of being a manifestation of assent to the content of those documents can be attributed."
Having mentioned this highly relevant consideration, the Court cites two rulings in which it has reiterated this position:
The first ruling is from December 15, 2004, issued in the proceedings of File 7202, in which it clarifies that the signature or mark in a legal transaction or in any other public or private act,
"does not depend, nor has it ever depended, on the perfection of the calligraphic strokes that ultimately appear printed on the document, but rather its evidentiary force has its genesis in the certainty that the resulting sign corresponds to a personal act, from which, moreover, the intention of being an expression of assent to the content of the writing can be attributed. Thus, the mere permanent or temporary reduction in the capacity to produce the calligraphic characters (sic.) usually used to sign becomes irrelevant if, despite this, there is no doubt that those finally materialized, even if made under conditions of deficiency or physical limitation, emanate from the person to whom they are attributed, made with the purpose of serving as their mark."
The second ruling is from February 20, 1992, published in volume CCXVI of the Judicial Gazette, in which it is made clear that "the symbol and the mere letterhead appearing on the document attached by the plaintiff with the initial complaint" cannot be considered a signature.
Based on the foregoing, the Chamber grants the requested protection and, consequently, sets aside the Ruling of August 24, 2012 issued by the Second Civil Decision Chamber of the Superior Tribunal of Medellín, and orders that tribunal to issue a new ruling "taking into account the considerations set forth in this judgment."
Now, having reviewed this tutela proceeding, the Constitutional Court concludes that if the assessment of the ordinary judges were assumed to be correct, one would reach the untenable conclusion that all pre-printed documents, even those whose content has not been filled out, are signed by the company merely because they bear a letterhead. Thus, the evidentiary assessment of the judges is erroneous, as it recognizes certain documents as negotiable instruments without meeting the requirements to be such. In this way, the Court established a clear rule of decision, as follows:
The mere letterhead of a company, pre-printed on the form of documents called invoices, without the signature of the creator of the document or without the presence of a sign or password imposed on the document, does not satisfy the requirements set forth in commercial law for the document to be considered a negotiable instrument.
The case in question is a situation that commonly occurs in small and large companies. Being a recurring and problematic situation at the time when certain invoices are intended to be collected through enforcement, since these cannot be executed. Finally, we must affirm that the fact that an invoice bears the letterhead of the issuing company does not replace the requirement that the invoice must bear the signature of the company's representative to fully comply with legal requirements.