The assessed enforceable regime of exceptions in the Exchange Judgment, Rafael Juan Juan Sanjose

derecho cambiario

The obligor will be able to oppose compliance, its foreign creditor, by articulating several allegations that go from purely certificated, that is derived from autonomous and abstract right that contains the securities serving as the object to the claim of the creditor, to the causal, whose foundation is in the underlying legal contract that was the basis for the issuance of the cambial.

 

We publish below work Rafael Juan Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.

 

 

 

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The assessed enforceable regime of exceptions in the Exchange Judgment

Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón

 

Index

1.- Introducción.-
2.- Concept and characters.-
3.- Classification.-
3.1.- Exchange exceptions.-
3.2.- The extracambiarias exceptions.-

 

1.- Introducción.-

In exchange demand of the opposition obligor shall state the reasons why that it should not meet the credit that the lender is asking you, and it will come with the exceptions identified in the LCCH and whose appraised regime we will analyze.

The obligor will be able to oppose compliance, its foreign creditor, by articulating several allegations that go from purely certificated, that is derived from autonomous and abstract right that contains the securities serving as the object to the claim of the creditor, to the causal, whose foundation is in the underlying legal contract that was the basis for the issuance of the cambial.

That is why in this paper will systematically analyze both characters who hold such exceptions, as the possibilities that the debtor, from its dual certificated / causal, you will have to weaken the payment is required, focusing especially on personal exceptions or grounds and more specifically in the defense of lack of funding in their field of partial defaults, for, thereby, glimpse the subject of debate between the different doctrinal currents set about the scope and extent of claims that under Article 67 LCCH are enforceable by the debtor and both theoretical and practical implications that this entails.

2.- Concept and characters.-

The exceptions, in the field of securities, They are conceptualized by Garcia and Soto Vazquez LUENGO (1) as "any procedural means of defense that forced exchange, sued, It can be used effectively against exchange action, exercised in either procedural avenues, by the person entitled to it ", PEACE definition is qualified by ARES (2) the exceptions referred to "defenses that are available to the signatory of a bill of exchange to show that he is not required to satisfy the exchange sum or, although included, Halle is exempt from it. "(3)

As for the legal field, the exceptions are regulated in Articles 20 and 67 ESA, and so Article 20 ESA determina que "The defendant by an exchange action may not raise objections to the holder founded on their personal relations with the drawer or with previous holders, unless the holder, to acquire the letter, It has acted knowingly to the detriment of the debtor. "

This article is a clear example of autonomy with securities, since what is being transferred to the successive holders is not the agreement that gave rise to the previous transmission or release of the cambial, but the right certificated insert itself in the document. So, the new holder will not be a successor of credit, but a new owner against the debtor and the third (4).

Which leads in turn the wording of Article, is that notwithstanding, What I will be able to be opposed to the holder or against any of the previous holders exceptions will be those derived from the document itself.

Also the legal regulation of exceptions reflects the abstract character of the security, in the sense of total disconnection, once into circulation, with the underlying causal originated business issue.

Under the abstract character, the payment made by the debtor to the creditor primal speaking on the causal business, and any renewal of obligations, both within, and the obligations and rights of the legal business, they will not affect that third party in good faith that is legitimate holder of the cambial.

This article 20 ESA, It is essentially the same as Article 17 Uniform Act of Geneva (5), to regulate a negative personal exemptions that may be raised by the various parties in the course of the security circulatory.

It is important the last paragraph of Article "... Unless the holder in acquiring the bill, It has acted knowingly to the detriment of the debtor ... ", since it contains the call "Fraud exception", protecting borrowers from abuses in the cambial transmissions.

The regime Article 20 LCCH is completed by the regulations in Article 67 (6) the same law, which is the basic standard for the exchange refers exceptions. In the first paragraph is transcribed only, differently, regulated in Article 20 LCCH previously studied, with the only hint of the possibility that the debtor may raise against the holder other exceptions based on personal relationships maintained between, it is logical and consistent with the regulation of exceptions we are studying.

The biggest issue raised by article 67 LCCH is given by the wording of the last paragraph "... Against the exercise of the exchange action shall be admissible only to the exceptions listed in this article ...", since him has opened an arduous doctrinal controversy about its scope (7), derived including the transposition into Spanish law of the Geneva Uniform Laws, as well as elastic and general nature of that regulation on currency exceptions.

The meaning of the regulation of foreign exchange depends exceptions final abstraction operation or maintenance of title reminiscent of traditional conceptions causalistic (8) .

3.- Classification.-

There are various classifications made by the doctrine of the opposable exceptions to claim a security and so GARRIGUES (9) distinguishes between real exceptions, arising from the letter itself or the absence of the essential requirements thereof and personal exemptions that are derived from the relationship between creditor and debtor exchange, from the underlying legal transaction normally, but not so necessary (10).

Meanwhile VICENT CHULIÁ (11) serving, in its classification, subjects who may allege and against those who can claim and thus distinguishes between objective exceptions, which they will be enforceable against all exchange required and subjective exceptions opposable only between subjects especially linked within the exchange ratio.

PEACE ARES (12) however, discrepa de estas clasificaciones y entiende que es más correcta la distinción entre excepciones cambiarias y extracambiarias. According to the author, exchange exceptions would be included in the second paragraph of Article 67 ESA, and include those that are not based on facts constituting or Extinctive, facultative rights even in exchange for settling debts of obligation, but on the personal relationship between the debtor and the creditor. They will therefore be, purely personal relationships, not derived from the certificated relationship, but legal transactions causal.
However currency, They are referred exclusively to the certificated relationship, and so the second paragraph of Article 67 ESA, It makes a systematization of the same on the basis of the new obligational relationship that has arisen from actual exchange business, these exceptions being both personal and real.

Having said that, Unlike the author exceptions into three groups:

1º. Exchange absolute exceptions, which derive from the very validity of the exchange obligation under the appearance of it and which are enforceable against all, It can not be excluded by the third holder in good faith.

2º. Exceptions currency or validity, to derive the delivery contract and have a relative efficiency, since they can be excluded by the holder of the cambial whenever there is not engaged in bad faith or gross negligence.

3º. Exceptions extracambiarias, that would be strictly personal, since they can only be opposed to the creditor who has been part of the personal relationship in which they are founded.
For our part we will adopt a similar classification to performing PEACE ARES, since we understand that more clearly reflects the reality of the current regulation and thus distinguish between exceptions and exchange extracambiarias.

3.1.- Exchange exceptions.-

Exchange exceptions are referred exclusively to the certificated relationship, therefore without significance the underlying legal transaction, and that based on abstraction and autonomy underlying the securities that protects bona fide third party purchasers of the events that occur in terms of personal relationships of holders precedents that resulted in the issuance or transfer of the cambial.

As manifested BARRERO RODRIGUEZ (13), the protection of bona fide third parties due to the demands of chairmanship of the theoretical backbone of abstraction native title rights and acquisition system and away from the budgets of communicability of the ENSHRINED exceptions in the traditional discipline of the assignment loans and the acquisition of rights.

In principle, given its objective nature and not related to personal relations between the parties involved in legal transactions causal, may be opposite for all, ie against any creditor exchange.

Among them Article 67.2 LCCH establishes a classification into three blocks, and thus fall within the exceptions currency:

1. The absence or lack of validity of the exchange statement, including the signing false. (67.2.1ª ESA)

2. The lack of legitimacy of the holder or the formalities of the bill of exchange, as provided in the LCCH (67.2.2ª ESA)

3. The termination of the credit exchange whose fulfillment requires the defendant (67.2.3ª ESA).

Given the enforceability of such exceptions debtor against any currency, and it is only certificated or share this quality with its causal position due to the intervention of the same, together with the applicant, the underlying business, the impact of the claim of such exceptions will not change anything, for procedural purposes, Regarding the claim of personal exemptions that we will analyze below.

3.2.- The extracambiarias exceptions.-

Among the actions extracambiarias, also called causal are incardinated all those born of the underlying legal transaction that resulted in the issuance of the security in question.

The Civil Code refers to this type of action in Article 1.170 when it is determining that "... The delivery of Promissory Notes, or bills of exchange or other commercial paper, will produce effects only when payment had been made, or when the creditor because they had been harmed. Meantime, the prosecution for the original obligation shall be suspended ".

The exceptions extracambiarias, for, be those, as Article 67.1 ESA, exchange debtor may raise against the holder of the bill based on their personal relations with him, as well as having over previous holders in acquiring the bill if the holder knowingly proceeded to the detriment of the debtor.

These exceptions will have its greatest significance when the parties to the exchange judgment are the same as those who participated in the causal contract, since otherwise, as we stated above, the principles of autonomy and abstraction that govern the securities will make those arguments unenforceable, except, as expressed in Article 67.1 LCCH that has acted to create awareness of harm to the debtor.

As he points ILUNDAIN MINONDO (14) its effectiveness is relative and that, except in the event the provisions of the last paragraph of Article 67.1 LCCH and oppose the exceptio doli, they will only be able to object against which was part, by the defendant, the underlying legal transaction.

Certainly the exceptions that will be able to oppose are those that have a bearing on the personal relationship of the holder and the debtor, which can, o no, be responsible for issuing the cambial or circulation of the security, so with that motivated the issuance or endorsement may exception in other personal relationships that link directly and immediately to the parties.

Thus fit distinguish, analyze when, among which itself derived from the causal business, which are based on personal relationships other parts of the process (15), and those that are enforceable against third parties holders but based on personal relationships with the debtor.

Among the exceptions arising from the causal link would be the lack of funding, both in terms of total default and the partial. In other exceptions based on personal relations between the holder and the debtor, we can include the letter except for, font in white, under the covenant not to ask, and the derivative of extinction credit. And finally regarding exceptions opposable to third parties holders of personal relationships with the debtor will include the An exception fraud, the exceptio mala fidei Traffic and exceptions.

This regime chosen in the legislature in establishing the alegables personal exemptions by the certificated / causal debtor, and especially as regards personal relations between the parties, We understand that it is unclear and too abstract, which causes some uncertainty in the justiciable and does a disservice to the enhanced protection given to securities.

By exposing, Article 67.1 LCCH that the exchange debtor may oppose those exemptions based on personal relationships you have with the holder of the bill, without concrete what kind of relationships are concerned, makes the interpretation of the provision has produced strong doctrinal and jurisprudential discussions.

If we opt for a broad interpretation of the provision, we find that it would cover all kinds of relationships between the parties, namely, both those arising from any agreement that served as the cause for the issuance of the cambial, as all others that had nothing to do with it and as they result from other business relationships that the parties have each other.

This position would admit, inter alia, they could oppose compensation claims arising from other debts between the parties, which would make before a certificated claim, the debtor could expose all the problems during the commercial life of the parties have taken place, and thus complicate and make a quite complex mode, a discussion which was originally initiated by way of a security.

The broad interpretation, to which we have referred, We understand that it is not appropriate to the aim with the wording of the provision, because if we put it in context with other legislation and in particular with the LCCH, and we make a systematic interpretation of the provision, we can see that the legislator gives values ​​greater protection titles to give some certainty to commercial traffic, this thing that would totally violated by such a broad interpretation that distorted the essence of securities.

If we add to this the specific process that has been regulated for collecting and processing the cambial demand of opposition, previously studied, we see that such oppositions as wide ranging issues totally unrelated to the cause of the contract, They have no place in the defense of lack of funding seen as the underlying cause lack of legal business.

In return, a more restrictive stance when interpreting the precept, limited exceptions to the personal relationships that they were directly connected with the issuing of the cambial, ie they stuck exclusively to the business that gave rise to the issuance of the same.

This interpretation, although we understand it more in line with what is intended by the legislator, It must be qualified, because if our intention is to gird the dispute to strictly business generator cambial we can find us with real abuses and injustices materials within complex business relationships.

Consider issuing a cambial as payment for labor certification, within the various, that during construction of a building are performed. If we choose to restrictive interpretation, in the process of claim cambial, They could only discuss the vicissitudes of that specific certification, and not the whole work, which would result in us having to determine whether or not a certain percentage of a particular item, it feasible thing most cases.

That is why we believe that the interpretation to be given to the precept would have to include not only those directly constitute those closely related issue personal relationships with contract legal basis for the issuance of the cambial, and so in the case raised could study the contract of work as a whole and not just a certain percentage of it without any sense for practical purposes.

Now, why we not keep to be extended to all matters, without any connection with the issuance of the security, They may have had between the bound and the exchange creditor, since not only vitiate the securities value, but would introduce currency judgment seat of issues that have nothing to do with the subject of the proceeding, denaturing turn the procedure itself cartular, and this for the characteristics of the same, as well as specialties in terms of the legal proceedings and the extension of res judicata that the legislature has regulated in the same.

Juan Juan Rafael Sanjose

Alternate Judge of the Provincial Court of Castellón.

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Notas:

(1) GARCIA LUENGO, R. and Soto Vazquez, R., The new legal regime of the bill of exchange in the doctrine and jurisprudence, And. Wives, Granada 1986.

(2) Paz-Ares, C. "The exchange exceptions" in MENÉNDEZ, A., (You.), Exchange Law. Studies Exchange and Cheque Law, And. Civitas, Madrid 1986, p. 254.

(3) ROMANIAN Moxico, J., Exchange and Cheque Act - Analysis of Doctrine and Jurisprudence, 6ª ed., And. Aranzadi, S.A., Low cizur (Navarre) 2002, p. 561.

(4) ROMANIAN Moxico, J., Exchange and Cheques Act ..., on. cit., p. 249.

(5) Convention establishing a uniform law concerning bills of exchange and promissory notes to order, Geneva, 7 June 1930. See also the agreement which regulate certain conflicts of laws concerning bills of exchange and promissory notes to order, Geneva, 7 June 1930; Convention on the Stamp Laws on Bills of Exchange and Promissory Notes, Geneva, 7 July 1930; Convention establishing a uniform law on checks, Geneva, 19 March 1931; Convention for the Settlement of Certain Conflicts of Laws in connection with Cheques, Geneva, 19 March 1931; Convention on the Stamp Laws in connection with Cheques, Geneva, 19 March 1931. Fte. Register of texts of conventions and other instruments concerning international trade law, Volume 1, United Nations, NY 1971.

http://www.uncitral.org/pdf/spanish/publications/sales_publications/Registro_textos_vol_I.pdf

(6) Article 67 LCCH states that "The exchange debtor may raise against the holder of the bill of exceptions based on their personal relationships with him. You can also oppose those he has personal objections against previous holders in acquiring the bill if the holder knowingly proceeded to the detriment of the debtor.
The defendant may raise currency, also, the following exceptions:
1ª The absence or invalidity of their own currency declaration, including the signing false.
2ª The lack of legitimacy of the holder or the formalities of the bill of exchange, as provided in this Act.
3ª Termination of credit exchange whose fulfillment requires the defendant.
Against the exercise of the exchange action shall be admissible only exceptions listed in this article. "

(7) In this sense, that stands out, inter, the position of PAZ-ARES, C. "Exceptions ..., on. cit., p. 264 which criticizes Article 67 LCCH since in his opinion-reaching exceptions forget as abusive completion of the letter on white, except falsification or , so you either have to be understood that such exceptions can not be invoked, o well, if they can be claimed, meaningless statement numerus clausus of the last paragraph of Article 67 LCCH and therefore concludes that "the exceptions is limited exchange, in fact a mere optical illusion; There is no limitation exceptions, Free allegation but those exceptions affecting the specific contract or claim ex former appearance- in each case are deducted. So taken this premise is true that the problem of limited exceptions dissolves into nothingness ", likewise Soto Vazquez, R., Opposition Manual Exchange, And. Wives, Granada 1992, p. 164, understands that Article exhaustively determines which exceptions are enforceable against the exercise of an exchange action, so it will be necessary to properly frame in that article the defense plea that wields, unless you want to risk him dismissed. And contrary CALAVIA MOLINERO, J.M., and BALDÓ CATAÑO, IN., The bill of exchange. Systematic study of the Exchange Act 16 July 1985, And. Praxis, Barcelona 1985, Positive understand the regulation on exceptions does Article 67 ESA, as against the exhaustive list of the previous legislation, the current flexible system allows fit situations worthy of protection, without this will have to make forced interpretations of legal provisions.

(8) BARRERO RODRIGUEZ, E., Exchange exceptions, And. Tirant lo Blanch, Valencia 2007, p. 21

(9) DIAZ-Garrigues Cañabate, J., Business Law Course, Tomo III, And. It was, Bogotá (Colombia) 1987.

(10) German doctrine, meanwhile, classification makes exceptions on a totally different basis, establishing a global systematization or blocks which can be ascribed the opposable exceptions by the obligor and so HUECK, A. and CANARIS, K. IN., Right-value titles, And. Ariel, Barcelona. 1988, pp.. 135 et seq., distinguish between exceptions excludable and non-excludable and non-excludable and subdivided into three major, immediate, to be those opposable until it has been an act susceptible acquisition of legal protection, Exhibits, that they relate to the content of the documentary right, and imputation, where the debtor, even apparent, He has not given rise to a right in the right way. These exceptions can not be excluded by the holder of the bill, so they will have an absolute character. The remainder, yes will be excludable the validity and personal exemptions, they derive from the underlying legal transaction.

(11) Chula VICENTE, F., Introduction to Commercial Law, Tomo II, 19th lesson, 22ª ed., And. Pulling Lo Blanch, Valencia 2010.

(12) Paz-Ares, C. "Exceptions…, on. cit., pp.. 262 ff.

(13) BARRERO RODRIGUEZ, E., Exceptions ..., on. cit., p. 55.

(14) ILUNDAIN MINONDO, M.P., "Judgment Exchange- Problems in its application – Reasons for opposition exchange – Causal exceptions ", Digital Training Notebooks, General Council of the Judiciary 2011, No.. 8, pp.. 146-178.

(15) Namely, which are referred to legal transactions between those who are plaintiff and defendant in the foreign exchange and judgment that have nothing to do with the issue that caused the cambial, but derived from other businesses, contracts, or relationships that have occurred over the commercial life that may have had the parties involved in the process. In this connection, see the case where the obligor seeks enervarlo certificated creditor claiming the plaintiff owed a certain amount of fruit other contract signed between the parties, the intention being to compensate both debts.

 

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