The exceptio non rite adimpleti contractus in the exchange rate regime by Rafael Juan Juan Sanjosé

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The exceptio non rite adimpleti contractus has the function of the complaint, by one of the parties involved in the underlying legal transaction, the failure by the creditor to exchange any of the obligations under the causal contract or defective performance thereof.

The following is the work of Juan Rafael Juan Sanjosé, Deputy Judge of the Provincial Court CASTELLON:

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The exceptio non rite adimpleti contractus in the Exchange System

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

 

Index

1.- Introducción.-

2.- Concept and configuration.-

3.- Failure to effects of exceptio non rite adimpleti contractus.-

3.1.- Introducción.-
3.2.- Failure of the principal obligation.-
3.3.- The seriousness of the breach.-
3.4.- Types of failure exceptio non rite adimpleti contractus. Partial breach against faulty breach.-

4.- Elementos de la duly filled, and not an exception to the contract.-

4.1.- Introducción.-
4.2.- The passively legitimized. Special reference to the transfer of credit.-
4.3.- Lack of good faith on the third exchange. Y bad faith, fraud exception.-

5.- Effects of exceptio non rite adimpleti contractus as a tool to weaken the payment obligation in the foreign exchange regime.-

1.- Introducción.-

In the event that the payment obligation that configures the securities to be breached by the debtor exchange, cambial and has not entered into circulation, the parties to the contract may be causal, for the sake of Article 67 ESA, to except personal relationships between them.

In this paper we will discuss one of the specialties, that within the generic exception of lack of funding, integrates any breaches that the parties can report to weaken the payment obligation is reflected in the title value.

We believe important to emphasize this derogation partial failure or defective, as the most important problem, and rotating the major doctrinal disquisitions, it's about the diatribe about the admissibility of such exceptions judgment seat of exchange.
Our aim is to shed light on what actually is to be understood as partial breach of the underlying contract, to differentiate it from full compliance itself, and be able to discriminate the problematic assumptions of those who are not.

Also we will proceed to determine those points that will influence, the material scope, the fact that one of the integral parts of the causal legal transaction to oppose payment of the obligation, which literally is expressed in the title value, ACTING, not because of lack of primeval contract, but specific disputes within the legal relationship giving rise to bypass or subsequent transmission of the document cartular.

2.- Concept and configuration.-

The exceptio non rite adimpleti contractus tiene por función la denuncia, by one of the parties involved in the underlying legal transaction, the failure by the creditor to exchange any of the obligations under the causal contract or defective performance thereof.
As set Alvarez Sánchez (1), the debtor may oppose the creditor except defective performance based on the creditor, which in turn he was the maker of the unpaid cambial, it has not fully satisfied the drawer or taker of that to which it was committed and for which payment had spread the securities subject of a complaint.

Por su parte TRAVIESAS (2) clarifies this and referred the exceptio non rite adimpleti contractus como una variante de la not an exception, so the contract que tiene por finalidad proteger a los contratantes que ven vulnerado el cumplimiento exacto de su obligación y que tiene como principal objetivo enervar el pago de la contraprestación hasta que los defectos hayan sido corregidos o la parte de la prestación no ejecutada se termine de prestar.

The purpose of this exception is, for, the parties being met in full the consideration of which were mutually creditors and debtors, and therefore that it looks enervated the provision in part to such failure or defectively executed not fulfilled, thus it is a subspecies of the generic exception of lack of funding, which among others includes the complaint alleged breaches of causal business.

Compliance will be partial or defective when the performance of one of the parties does not contain requirements that made its content or delivery, not being so satisfied the interests of the counterparty and therefore, nor shall be relieved defaulting, or extinct obligation (3).

As starting point, should not be forgotten, argued that as CASTÁN Tobeñas (4), obligation to bring I get the inevitable need for compliance, if the debtor fails to comply for reasons that are attributable to him, the law must strive in one way or another their effectiveness, namely, his forced or abnormal compliance. I said it must be put in relation to Articles 1.157,1.166 and 1.169 CC, according to which it can not force the creditor to receive the agreed-upon partial or manner other than as stipulated, whichever therefore fulfill the obligations of the way in which they were configured in the legal transaction concluded between the parties involved.

This means that the party intervened in the core business and has not fulfilled its obligations in full and on time can not be released with the simple partial compliance, the counterparty may plead such breach to a complaint from another Contracting.

Now, we must clarify that, except that partial failure will not operate, alone, as a means to enforce the party who has not been faithful to their obligations, but only serve to counter the demand for compliance of the other party, with the claim that the draft of the defective part or breach is valued and thus the part of the claim is enervates, in principle, applicant creditor.

As noted CLEMENTE Meoro (5), partial execution of the contract will not mean per se terminate the contract, but neither it will exclude root, it will be necessary to assess extent and severity of the breach in the economy of the contract, so it is not any partial execution empowered to resolve according to Article 1.124 CC, nor that for this to occur is necessary to total and complete failure.

So that, It must clearly differentiate when it comes to a partial or defective Failure, when we have a complete failure, which although seemingly simple, in practice it becomes very complicated, since the assessment of the magnitude of the failure may cause although not total purity, you get close to it so that it is treated as such for the purposes of oppositions and contractual resolutions (6).

3.- Failure to effects of exceptio non rite adimpleti contractus.-

3.1.- Introducción.-

The partial or defective Failure, It is nothing but a specialty of total failure, so we understand essentially important to determine what is conceived as a total failure, for the purpose of raising an objection of failure in any of the two sides, since what is not conceptualized as a total, It will be understood as partially or defective, impacting this distinction, both contractual sphere, and in terms of procedural powers.

Es por ello que en los siguientes subepígrafes vamos a proceder a analizar los incumplimientos que configuran la not an exception, so the contract, You are sitting in order to leave cases where the breach is to be considered complete, in order to distinguish it from the partial or defective defaults. Once given this distinction, A Difference, within exceptio non rite adimpleti contractus lo que ha de ser considerado como incumplimiento parcial y lo que se entiende como incumplimiento defectuoso del negocio jurídico causal.

3.2.- Failure of the principal obligation.-

For breach of contract by one party entitles the counterparty to resolve the causal contract, for the sake of Article 1.124 CC, or put another way, for lack of cause to derogate from the seat of judgment exchange, not fit the allegation of any infringement, but it shall exist in certain characteristics, so it will be necessary to distinguish, inter alia, as is a breach of accessory or principal obligations, and the severity or authority thereof.

The total failure or decisional must be related to the primary obligation of fundamental contract and so FERNANDEZ URZAINQUI (7), entiende que deberá estimarse como principal la prestación cuya inejecución perturba notablemente la interdependencia funcional de las prestaciones privando de causa la contraprestación y que para determinar el carácter accesorio o principal de la prestación ha de estarse no sólo a la función que cumple, abstractamente considerada, in the typical structure of the contract, but also the will of the parties and the objective pursued by them to hire.

Therefore, any failure that does not affect the main obligation, but the accessory, no será considerado como total y por ende entrará dentro del ámbito de la exceptio non rite adimpleti contractus (8).

Notwithstanding this, a doctrinal industry among which is PINTÓ RUIZ (9), argues that there are certain benefits, although in principle they could be considered incidental, They are necessary, namely, are sine qua non for the establishment of the duty condition and therefore a breach of these should, just as the major, It is regarded as a total failure or decisional.

From the above it follows that, before breaching a fundamental obligation of the contract, frustration determined object thereof to the parties, we face a total failure, whereas if non-compliance is limited to some of the accessory obligations, he must calibrate its importance in the overall contract, and the impact that failure means the economy of the transaction, a fin de calificarlo como total y por ende inserto en la not an exception, so the contract, o parcial y en consecuencia encuadrado en la exceptio non rite adimpleti contractus.

3.3.- The seriousness of the breach.-

Regarding the gravity of the breach or entity, so that it can be integrated into a total or partial breach, if it is true that the Act does not specify what criteria continue, no es menos cierto que la jurisprudencia (10) ha configurado el incumplimiento total como aquél que sea verdadero, own, serious, essential, of importance and significance to the economy of the interested parties, or having sufficiently important to prevent the economic satisfaction of the parties.

Likewise also it affects the breach must involve the failure to achieve the intended purpose of the parties when they made the legal business, the frustration of the legitimate expectations of these, their aspirations, or the end of contract, and the failure of the economic purpose of the contract, frustration objective pursued by the business or a meritorious interest, affect the main object of the contract, or finally, be of such importance in the economy of the contract to justify its decision (11).

For everything I said, when a breach to qualify as full and thus distinguished from partial or defective, This should be of such gravity and importance within the framework of the contractual relationship between the parties, that makes their expectations on the outcome of the trampled look. Besides that one of these parties is ineffective and earns a breach of the fundamental obligation to occur, substantially deprives the aggrieved party of what it was entitled to expect under the contract.

Notwithstanding this, when a breach qualify as full or partial or defective, we face in practice many examples where the dividing line between the two figures is not at all clear, producing significant difficulties in establishing the impact of such failure.

3.4.- Types of failure exceptio non rite adimpleti contractus. Partial breach against faulty breach.-

Respecto al incumplimiento que entraría dentro de la esfera de la exceptio non rite adimpleti contractus, It is convenient to differentiate between what is considered a partial failure and faulty failure.

The partial failure, understands TRAVIESAS (12), to be given when compliance is not made due and there is no right to impose on the creditor. It will also be biased when it meets proper thing but there are flaws or charges, unknown by the creditor, to improve the contract, that entitle the challenge. And it will be when the provision is not of the qualities due. It may be used, In all these cases, the exceptio non rite adimpleti contractus.

Regarding the defective failure, means the doctrine (13), that will occur when, even initiated by one of the parties to which the provision had been forced, however finally made provision does not match or does not fully conform to the agreed on the fundamental legal transaction, namely, but it meets evil.

The first studied Figures, partial breach, It will mean problems about the organization of compliance in order to be considered as partial or full, while in the case of defective performance, It will affect the very essence of the contract, namely, satisfaction or not the claims of the parties, compliance and if this differs greatly from the planned, and therefore can be assimilated to the total.

Therefore, to the claim of a security by the creditor currency while it is causal, It is having been part of the underlying legal contract, el obligado al pago podrá oponer la exceptio non rite adimpleti contractus, when the counterparty has not complied properly with the provisions of the causal business, in the sense that he intends to deliver something that is not of the qualities of due taxes or having the obligor unknown, with which we will enter the realm of partial compliance.

Also, the debtor cartular, You may invoke the exception of defective performance when the creditor has fulfilled its obligations but has done wrong, by not giving satisfaction, with such compliance, the expectations of the obligor. Todo ello con los matices expuestos respecto a la transcendencia de los incumplimientos a la hora de poder ser calificados como totales y por consiguiente dar origen a la not an exception, so the contract.

4.- Elementos de la duly filled, and not an exception to the contract.-

4.1.- Introducción.-

In this section we intend to get into the study of the substantive requirements and budgets that are needed to make it alegable, and can thrive, an exception based on a partial or faulty breach of the underlying contract to the claim, by the causal creditor, insert amount in cambial.

So, except partial compliance or defective, as we noted, when what is being claimed is the credit which is built into a security, will only be able to be alleged against the claim made by the creditor to exchange at once is one of the parties to the contract causal, due to abstraction and autonomy of cambial.

Therefore, al ser la exceptio non rite adimpleti una especialidad de la excepción de provisión de fondos y por tanto una excepción personal, third exchange, shall be exempt from the possibility that they are opposed to him the events arising from the relationships between the parts that were the underlying legal transaction, unless, as Article 67.1 ESA in fine, it is acting in bad faith or gross negligence, or circulation of title is not issued pursuant to the exchange regulations and has been pure transfer via Credit.

It is clear, and being peaceful, who will be able to oppose such arguments to rebut, even partially, the payment obligation arising from cambial, this is the exchange debtor in turn is causal, we must determine who will be able to be partial or defective alleged breaches.

4.2.- The passively legitimized. Special reference to the transfer of credit.-

It is true that, as we said, it seems clear that the exception of partial or defective Failure, you can only stand up against who intervened as a party to the causal business, the legitimate holder of the title, and he is now demanding payment of the obligation that is reflected in the title value, without prejudice to the third exchange. But the definition of the figure of the third currency is not as simple as it might seem at first.

The third exchange rate should not be confused with the procedural technical sense of "third party", since the third exchange will own right certificated, and therefore it may be involved in the process, not having, for, third procedural status.

As noted NAVARRO BONET (14), the third exchange material condition relates to the absence of personal relationships, exchange or are just extracambiarias, between those who are entitled to the right and the obligation documented in bills of exchange, the promissory note and the check.

It must be noted that, to third party status is acquired exchange, the transfer of title must have been produced according to the law, since we otherwise would result in a mere transfer of credit, whereby, It shall not be deemed the assignee as a third currency.

Do not forget that the assignment of claims will not pass to the transferee the certificated rights incorporated in the securities, since this will require that traffic cambial meets legal requirements and put into effect by endorsement, transmitting thereby the transferor's rights and obligations inherent to the causal business, and may oppose the assignee those controversies, defaults or events that affect the underlying contract.

So that, in case of transfer of credit, They do not operate the characteristic effects of exchange rate movement, so that the transferee instead of acquiring all rights resulting of the security referred to in Article refers 17 ESA, acquires, in accordance with Article 24 of the Act itself "all rights of the assignor", so that, against the exercise of the exchange action by the transferee, albeit purchaser in good faith, exchange debtor can oppose the exceptions has against the assignor, notwithstanding, Of course, civil or criminal actions that can not exchange attend who acquired the title trusting to the impression created by those who said bills of exchange.

And so, the generality of the scientific doctrine, It is understood that the assignment without endorsement of the bill of exchange, It involves the simple transfer of credit represented in this cambial in favor of the assignee, who does nothing but subrogated to the rights and obligations of the assignor, so that the new owner may oppose the letter the same exceptions that would argue against whom he has transferred, considering that the effects of the article do not occur 20 of that Act; and, also, the transferee does not acquire, unlike the endorsee, a separate and independent legal position, or applicable protection under that Article 20 on the exclusion of personal exemptions (15).

The fact that relationships can be exchange or extracambiarias, It will produce the third exchange can be "full", namely, totally unrelated to any personal relationship, both in the exchange area, as in the causal, or "partially", when not having a causal relationship, maintain personal relationships yes exchange measures.

4.3.- Lack of good faith on the third exchange. Y bad faith, fraud exception.-

However, third exchange not always be safe from personal exemptions, since Article 67.1 LCCH establishes an exception to the assumption that the securities acquired knowingly to the detriment of the debtor.

This exception, es conocida como An exception fraud y se fundamenta en lo establecido en el artículo 20, besides the already mentioned Article 67.1 ESA, and so the exchange debtor may raise against the third party purchaser, was different from that of the underlying business, all the personal exemptions that the debtor has against the previous holders.

With this exception the exclusion of the principle of abstraction of securities is always possible that the third acquirer was aware and knowingly acted to the detriment of the debtor at the time to seize possession of the cambial, which makes it logical that in such circumstance withdraw protection the holder acquired on the basis of abstraction title.

For this exception into play, the third party must meet the vicissitudes and possible grounds for opposition to the debtor could wield against the previous certificated holder, avoiding, with transmission, the possibility that such exceptions may oppose for the sake of abstraction title and protection to third party purchasers dispensed.

Also the new acquirer must act with the intent to injure the debtor, namely, the transmission is performed in order to deprive the debtor of possible defenses. Although the intention of damage should occur when the transmission is performed, since in the event that at that instant the possibility of exceptions against the spread or not there is such an intention of prejudice it did not know, but after it deviniese, It is not opposable.

As Soto Vazquez says (16), GARCIA citing LUENGO, knowledge except what rate is the subjective state of bad faith or malice enough for the communicability of personal exemptions, but we can estimate that although such knowledge is a necessary budget is not enough, since it is also required that the holder has acquired the cambial for their own benefit or that of the transferor, or fraudulent agreement between.

Also, third exchange, Nor is relieved when they can be excepcionado yet have acted in bad faith, puesto que en este caso podría oponerse la An exception fraud, He did so tortuously, as it knew or should have known the vice affecting the value transmitted title, siendo en este caso oponible la exceptio mala fidei.

Jurisprudence (17) la ha definido como una excepción “válvula”, whose purpose is to break the diaphragm appearance and enable the use of the exceptions of validity of the legal business.

In this sense, also the doctrine agrees enforceability of such exception and so ARES OR PEACE NAVARRO BONET (18), inter alia, understand that although exceptions extracambiarias, in principle, They shall only be enforceable against the third party where he acted in bad faith, This does not preclude that such effects can be extended to those parties who have acted with gross negligence, y para ello se acogen entre otros a los artículos 12 and 19.2 ESA, thus allowing, either by intent or gross negligence, certificated transfer the relationship to flourish and causation, leaving only safe from these kinds of exceptions that legitimate holder who has acted in good faith or ordinary negligence.

For everything I said, if the obligor understood that the cambial holder has acted in bad faith or gross negligence, deberá oponer la exceptio doli o la mala fidei, with the exception that staff understand alegable, since only in the event that it is estimated the existence of fraud or gross negligence, it shall assess whether indeed there has been a breach of the underlying contract, which would not happen if only limited to personal exemptions argue without the presumption of legitimacy for possession which is regulated in Article destroyed 19 ESA (19).

5.- Effects of exceptio non rite adimpleti contractus as a tool to weaken the payment obligation in the foreign exchange regime.-

At this point, when certificated cambial creditor claims and the debtor is in any of the cases studied that can claim the personal relations between the two (20), the causal business comes to life against the right certificated, and therefore, should be examined in its fullness disputes that have arisen between the parties result of core business, being of relevance for this purpose both the entity of the claim is made, as the nature of the breach that complaint.

As we have seen, if total defaults, the problem, both procedural effects, and practical, It is lower, since to resolve the existence of total failure, only should check the absence of cause in the securities whose collection is required, and this will cause the applicant, when exercising its right and weaken the effects of a possible exception, only have to prove that it has complied with the requirements, duties and obligations they undertook when he made the contract with the defendant now.

However, if not total defaults, the issue is much less simple, since in such cases and in order to rule on the complaint of the breach, it should enter deeply into the underlying business, and so it is essential to analyze each and every one of the issues, both main, as ancillary surrounding the contract which is the subject of debate.

This leads to a thorough study of the issue, where, in contracts that can be very complex, either in the legal field, either in the area of ​​execution of the same, we can meet the need for a comprehensive presentation of evidence and draft, in order to determine whether there is indeed a lack of full compliance, who bears the blame for failure and ultimately, as such failure to detract from the obligations that the parties had contracted.

Do not forget that this substantive overprotection was granted, from antiquity to the securities, here they have no practical effect, since to find ourselves a question that has to clarify between the parties to the contract causal, and for the sake of Article 67.1 ESA, these personal issues are listed as exceptions extracambiarias, and therefore the principles governing the cambial, They are outweighed by the very relationship of primitive Contracting.
A este respecto MOXICA ROMÁN (21) puntualiza que algunos autores identifican las excepciones personales con las causales, but in fact the term used in Article 67 ESA, "personal relationships", It is broader than "causal relationships", understanding not only what helped cause the issuance of the cambial, but also any other existing relationship between the parties, even outside the cambial.

At this point it is important to mention some doctrinal sector understands that it is not always possible, when partial defaults, servirse de la exceptio non rite adimpleti contractus y así ORTI VALLEJO (22) manifiesta que sólo estaría legitimado, the buyer, to oppose the exception, when what he is pursued by not paying, It was compel the seller to improve compliance, with what would be necessary to previously communicated to the seller why their behavior and not expected to be appealed to the courts to enforce it in the process.

Nonetheless, alegable we understand perfectly that exception if the degree of compliance by the applicant is not the one that was agreed in the core business and therefore the defendant can assert it to unnerve, even partially, its payment obligation, provided they have complied with the requirements of good faith by both parties.
Also we believe that there is no doubt that the objection of defective performance is fully accommodated within the context of Article 67.1 ESA, and therefore within those relationships between the parties to the contract causal. However what is not peaceful is if you can be claimed in all proceedings instituted by the creditor exchange.

At this point we must distinguish the exchange action, of action extracambiaria, the first one being that based on the autonomous value inserted in the title (23), while the second refers to the underlying legal transaction itself.

The exception that we are studying, as we have noted, will enter into the extracambiarias actions, Because you can not resist, and it is peaceful, to claims made by a third person lawfully in good faith that seeks the recovery of the cambial, but only to the part that was, together with the defendant, the causal business.

Al respecto ESTEBAN MONASTERIO (24) hace una importante reflexión y así manifiesta que el carácter bifronte del crédito (causal and exchange), with different substantive and procedural treatments, finds its gap at point and time in which there is identity of parties, thus avoiding an abuse of rights. Piénsese, for example, the causal debtor, trying to take advantage of their status as foreign exchange creditor to initiate a legal claim without making the funding, or having complied partially or defectively the causal business. Deserves our attention the answer to the question of whether, then, he would oppose the debtor except exchange defective performance of funding, in his capacity as causal creditor.

To this we must give an affirmative answer, because as we said, causation, if they are the same parties that intervened in the underlying business, surpasses the right certificated, avoiding, abuse of rights as set forth, a simple matter of material justice, protected by Article 7 CC.

So that, if the action is brought extracambiaria, itself may raise the exception, but this is where there is no agreement, distinguishing whether it is a claim by way of a declaratory judgment, or if instead there is a demand for trial exchange, with specialties that the LEC provides for it.

In the event that the claim is made by the declaratory judgment based on the amount, there seems to be no objection to admit, given the full cognition thereof, the possibility of excluding a partial default. The problem arises when the exercise of the action has been carried out via the exchange trial, and this is where the authors are divided in support or not the possibility of excluding partial or defective compliance (25), inasmuch as, depending on how it considered its nature and its legal configuration, will fit or not exceptions to this draft.

Juan Juan Rafael Sanjose

Alternate Judge of the Provincial Court of Castellón.

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Notas:

(1) Alvarez Sánchez, J.I., MEDINA and COLUNGA, C., "The" exceptio non rite adimpleti contractus "in the exchange executive judgment", en AA.VV., TSJ rulings of other courts and AP and vol. IN (Comments), Aranzadi, S.A., Pamplona 1999, pp.. 143-157.

(2) SLEEPERS, M., "Reciprocal Obligations", Private Law, 1929, p. 336.

(3) Beltran de Heredia and ONÍS, P., The breach of obligations, And. Right Reunidas publishers, Madrid, 1990, p. 58. In the same vein see STS 3 March 1979 (ROJ: STS 82/1979) when exposed to fulfill an obligation means to satisfy the creditor's interest in an accurate manner, full and timely.

(4) Auburn TOBEÑAS, J., Spanish Civil Law, Common and Foral, 7ª ed., vol. III, And. Instituto Editorial Reus, Madrid, 1950, p. 117.

(5) CLEMENTE MEORO, M.E., The right to terminate the contract for breach, And. Pulling Lo Blanch, Valencia, 1998, pp.. 288-290.

(6) This difficulty is compounded by the fact that the distinction between the two figures is not determined by law, as well it puts it BIANCA relief, C.M., “Conformity of goods and third party claims”, en BIANCA, C.M. And BONELL, M.J., Commentary on the International Sales Law. The 1980 Vienna Sales Convention, And. Giuffre, Milan 1987, p. 270 et seq., when he says that the Vienna Convention on the International Sale of Goods does not define what is meant by default, but the rules contained therein follows that includes both non-compliance, as the delay in meeting, partial performance and defective performance.

(7) FERNANDEZ URZAINQUI, F.J., "The decisional breach of bilateral contracts", Aranzadi Civil, 1997, No.. 1, pp.. 51-86

(8) At. among others ALVAREZ VIGARAY, R., The resolution of bilateral contracts for breach, And. Wives, Granada 1986, p. 144.

(9) PAINTED RUIZ, J.J., "The tacit condition subsequent", in Appendix to MOSCO, L., The resolution of bilateral contracts for breach, trad. esp., And. Duke, Barcelona 1962, p. 364

(10) At. inter SSTS of 19 June 1995 (ROJ: STS 3557/1995), of 10 December 1996 (ROJ: STS 7062/1996), of 23 January 1996 (ROJ: STS 7964/1996), of 3 September 1992 (ROJ: STS 19567/1992),…

(11) CLEMENTE MEORO, M.E., The power to solve ..., on. cit., p. 252-254.

(12)SLEEPERS, M., "Obligations ... op. cit., p. 337

(13) Among MARTÍNEZ CALCERRADA, L., "Defective fulfillment of the provision", Real Estate Law Review Magazine, July August 1976, pp.. 1.335 ff.

(14) Bonet J. NAVARRO, Currency judgment debtor and opposition. Doctrine, jurisprudence and forms, And. The Law, Madrid 2004, p. 469.

(15) At. STS Sala 1ª, number 341/2011, of 6 June 2011, speaker: Rafael Gimeno-Bayón Cobos (ROJ: STS 3398/2011).

(16) Soto Vazquez, R., Opposition Manual Exchange, And. Wives, Granada 1992, p. 497.

(17) At. SAP's Balearic 1 September 2003 (ROJ: SAP IB 1751/2003).

(18) Bonet J. NAVARRO, Trial and opposition exchange ..., on. cit., p. 474.

(19) Article 19 LCCH "The holder of the bill of exchange will be considered legitimate holder thereof when justifying their right by an uninterrupted series of endorsements, even if the last endorsement is blank. On that matter, the crossed endorsements are deemed not written. When a blank endorsement is followed by another endorsement, the signatory of this means that acquired the bill by the endorsement in blank.
When a person is deprived of a bill of exchange, for any reason whatsoever, the new holder to justify their right in the manner indicated in the preceding paragraph, You are not obliged to return the letter if purchased in good faith. "

(20) The creditor has been part of the causal legal transaction, it has acted in bad faith or has done so tortuously.

(21) ROMANIAN Moxico, J., Exchange and Cheque Act - Analysis of Doctrine and Jurisprudence, 6ª ed., And. Aranzadi, S.A., Low cizur (Navarre) 2002, p. 566.

(22) GARDENS VALLEJO, A., The defects of the thing in civil and commercial sale, And. Wives, Granada 2002, p. 198.

(23) Soto Vazquez, R., Opposition Manual ..., on. cit., p. 23, defined as the exchange action designed to enforce the obligations resulting d subscription, any concept, a title of this nature, undoubted privilege of enjoying it.

(24) ESTEBAN MONASTERY, I., "Scope of the exception of non-compliance in the foreign exchange business causal judgment", Civil Today, 2012, No.. 3, I take 1, p. 269.

(25) At. in the sense of admitting the exceptio non rite adimpleti contractus judgment seat of exchange, inter alia, the hairstyle MARSHAL, P., "The exceptio non rite adimpleti contractus in opposition to exchange trial (Commentary on the Judgment 518/2003, of 24 November, de la Audiencia Provincial de Santa Cruz de Tenerife)”, Journal of Banking and Capital Markets, 2004, No.. 95, pp.. 235-243; Bonet J. NAVARRO, Trial and opposition exchange ..., on. cit., pp.. 13-45; and PAUMARD COLLADO, F., "Enforceability or not the exceptio non rite adimpleti contractus in the exchange executive judgment", Judicial Law Notebooks, CGPJ, 1993, pp.. 351-353.

At. as representative authors of the stand against the admissibility of the exceptio non rite adimpleti contractus Serrano MASIP, M., The exchange executory, And. CEDEC, Barcelona 1997, pp.. 340-341; LOPEZ LOPEZ, E., "The lack of funding as the causal exception executory (Please Letter)”, Civil Today, 1993, No.. 28, p. 467; and Alvarez Sánchez, J.I., MEDINA and COLUNGA, C., "La" is not an exception ..., on. cit., pp.. 143-157.

 

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