It is common in the commercial sphere to find that, in addition to the execution of commercial contracts that require one of the parties to deliver a sum of money, negotiable instruments of a credit nature are signed as a form of guarantee, with the purpose of facilitating the eventual collection of the agreed sum in the event of a possible breach of payment under the underlying contract.
This is the case when, as a complement to the execution of the main contract, a promissory note, a check, a bill of exchange, or another negotiable instrument of a credit nature is signed, usually due to the confidence generated by the autonomy of the instrument with respect to the underlying contract, implying that the former may be presented for coercive collection, promoting the respective executive process to demand the value expressly contained in the document. As long as the instrument in question complies with the general requirements of negotiable instruments, in addition to those specific to each type of instrument regulated by commercial law, the judge will proceed with the forced collection.
Given this scenario, it is pertinent to ask some questions regarding the effectiveness of the instrument. First, it is possible to address the fate of the underlying relationship, that is, the contract with respect to which the negotiable instrument was signed. It is also appropriate to specifically study the action derived from the instrument in question and through which judicial collection is sought. Finally, it is appropriate to determine whether, once the aforementioned action ceases to be effective, the legitimate holder of the instrument is left unprotected by the legal system for the timely collection of the amount owed.
To address the first hypothesis described, one must start from the provisions of Articles 643 and 882 of the Commercial Code, which regulate the analyzed scenarios. Initially, the validity of the delivery of a negotiable instrument as a means of payment for an obligation arising from a different legal relationship or contract is prescribed, in which case, unless otherwise agreed, the extinction of the underlying relationship that gave rise to the creation of the instrument can never be presumed. Once the negotiable instrument is signed and delivered as payment to the authorized party, it will be subject to a condition in favor of the holder of the instrument, since in the event that the payment of the value contained in the instrument is not made by the debtor, the aforementioned rule establishes that the creditor may, at its discretion, choose to terminate the autonomous legal relationship created with the signing of the instrument and seek payment in accordance with the terms agreed in the original contract, or, alternatively, pursue the debtor through the action derived from the negotiable instrument.
Regarding the second related aspect, it should be clarified that the name of the action through which the collection of the value contained in the negotiable instrument is demanded, in the event of the debtor's default, is the exchange action (acción cambiaria).
The exchange action must be directed against the acceptor or original issuer of the credit document, that is, the initial subscriber of the negotiable instrument. That action may be presented to demand the total amount of the instrument or the part not accepted by the debtor, the interest accrued from the expiration of the term agreed in the instrument, and also the expenses that the creditor must incur for collection. Likewise, if not otherwise agreed and the instrument has been transferred from one holder to another, the last legitimate holder may, in the event of non-payment by the initial subscriber, proceed against the previous holders for the satisfaction of its credit. The latter action is called the recourse action (acción de regreso).
The Law does not contemplate that the aforementioned actions have an indefinite term for their presentation before the competent judicial authority. Regarding this point, it is important to highlight the importance of one of the dimensions of the legal phenomenon of prescription, whose occurrence leads to the fact that, with the passage of time, together with the conduct of the negotiating parties, obligations that compel the execution of a performance in favor of another cannot be judicially enforced.
According to the Commercial Code, in the absence of an interruption or suspension due to the conduct of the parties, the exchange action may not be presented, upon the occurrence of the prescription phenomenon, after 3 years from the maturity of the date agreed in the instrument for payment. On the other hand, the action against previous holders, if any, will prescribe within the year following the agreed date or with respect to the presentation of the protest by the last legitimate holder if agreed.
Now, once the main action is defined, it is also essential to study the possibility that the holder of an instrument, due to countless circumstances, cannot bring the process through which it seeks the forced payment of the obligation within the term specified above, or even if brought, due to judicial determinations regarding the debtor's joinder to the process, the filing of the lawsuit may not be effective in interrupting the studied term, resulting in the prescription of the exchange and recourse actions. This hypothesis involves an interesting question, as the doubt arises as to whether the exchange creditor no longer has procedural means to demand payment of the amount owed.
First, it should be clarified that once the exchange action derived from the negotiable instrument has prescribed, the obligation arising from the underlying or original contract will also prescribe, or in other words, payment cannot be pursued through the initially signed contract, in accordance with the terms of the third paragraph of Article 882 of the Commercial Code. However, the same article conceives a last-resort action for the exchange creditor: the action for unjust enrichment (acción de enriquecimiento cambiario).
The enrichment action regulated for negotiable instruments is conceived as a remedy that seeks to remedy a situation of injustice, in which an estate may see its amount increased with the consequent decrease of another person's estate, without a just cause between both situations. Thus, primacy is given to the principles of equity, justice, and solidarity, which stand as general principles of our Law, given the rigidity of the formalism inherent to the regime of negotiable instruments, protecting, as a last-resort mechanism, the legitimate holder of a negotiable instrument against countless circumstances, whose occurrence may prevent the timely exercise of the main action, not thereby implying irresponsibility or negligence on its part.
Subsequently, the action must be directed against the person who has benefited or enriched their estate due to the prescription of the main exchange action. The described scenario does not necessarily lead to identifying the initial issuer of the instrument as the beneficiary of the prescription of the action, since if the instrument was transferred among different holders, the action may be directed against those who benefited from a scenario like this.
The commercial rule establishes that the enrichment action has a prescription term of one year after the consummation of the prescription of the main exchange action. The foregoing may lead to questions regarding the start of the calculation of this term, since from the wording of Article 882 of the Commercial Code, it can be inferred in some way that said term will only begin to run once the competent judge judicially declares the prescription of the main action. Faced with this doubt, the Supreme Court of Justice, in its Civil Cassation Chamber, has been reiterative regarding the phenomenon of extinctive prescription and the non-requirement of a judicial ruling for its consolidation.
Thus, if the parties do not interrupt or suspend the prescription of the main exchange action, it will be constituted automatically by legal mandate upon the arrival of the legally determined date, immediately starting the prescription term of the enrichment action, the last bastion and means available to an exchange creditor.
Andrés Ogonaga. – CONSULTING ATTORNEY AZC