The payment obligation on the exchange rate regime by Rafael Juan Juan Sanjosé

derecho cambiario

For the issuance of the security will coexist two independent payment obligations to each other, whose origin and basis is different, but while the remaining credit in the cambial insert is not satisfied.

The exchange law has always been a complex subject. However, its importance in trade makes it essential to have a thorough knowledge concerning exchange rate.

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

The payment obligation on the Foreign Exchange System

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



1.- Introducción.-
2.- Origin of the obligation to pay in the foreign exchange regime.-
3.- The coexistence of the obligation to exchange payment and causal.-

1.- Introducción.-

In this paper we will proceed to differentiate and analyze the various payment obligations arise when the parties after intervening in a legal transaction, a security as payment of the obligations is issued at the same.

Do not forget that the securities, as a document of the trade, set up a payment obligation for the exchange obligation to the legitimate holder of the cambial. This obligation will become, as we discussed below, the business that gave rise to the issuance of the title, or own autonomous right bearing insert the same for the sake of the very nature of the.

That is why the obligation to pay, as such, it should be understood in two ways, because sometimes between the holder and the debtor coexist exchange causal payment obligation with the obligation to exchange payment, the first born of the primeval legal transaction and exclusive link between the parties to the same(1), and the second from right, and then we will expose, It is inserted in the securities, once into circulation, for the sake of the principles of abstraction and own autonomy thereof.

To accurately determine this double obligation that arises from the issuance of the security we analyze the origin of each of the certificated / causal obligations, and specify the grounds on which relies each and substantive consequences for the persons involved in both the underlying legal transaction, as in the circulation process cartular.

2.- Origin of the obligation to pay in the foreign exchange regime.-

The origin and nature of the payment obligation, both in causal side, as certificated are critical to determining the obligations assumed by the parties because of the transmission of cambial, as well as the different legal agreements underlying such transmissions.

Regarding the obligation to pay causal, its origin is derived from a legal contract, traslativo between the parties, that generates rights and obligations between them, being the issue of the cambial reflect the debtor's obligation to economically meet the consideration of the other party. Namely, the birth of the credit has to face the obligor, in its causal aspect, It is rooted in the personal relationships between the parties involved in the underlying legal transaction.

These personal relationships, They gave fruit to any agreement that, as we noted, generated obligations and rights of both parties, which determined that one issue a certificated payment of the consideration as document received by the other party.

So that, It is obvious that this purely contractual or business relationship, originally, It determined the issue of a cambial which in turn generated a new payment obligation, although different coexisting, between the parties that were the underlying legal transaction.

The first payment obligations, ie extracambiaria or causal, is no different than the liability that has any debtor to his creditor that has filed a generator of rights and obligations between the contracting business relationship.

However, and due to the exchange rate regime that articulates securities, as we have said, the fact cambial to issue a payment obligation generated by the negotiation made, it will cause a new credit law and therefore a new obligation between the parties, who shall be completely independent of the cause and therefore will have a different treatment, and a radically different possibilities enervation of the business founded by primeval.

The new certificated obligation will have its own based on the principles governing the securities and which give them an enhanced protection compared to other means of payment existing law, having as purpose cartular traffic safety and the possibility of obtaining a self-financing result of the movement of cambial.

Since the birth of the causal payment obligation is not discussed in the sense that it does not differ from that which is born of the various legal transactions, independent of the method of payment chosen, we deem it necessary to make an approach to the different theories that have been put forward about the origin of the obligation cartular, and the principles governing the securities and that will determine these documents are reinforced regarding any of the trade, assuming a form of payment, and especially a receivable, with greater efficacy and safety than the rest.

So things, the origin of the certificated obligation is discussed by the doctrine considering various theories about among which include the following:

a) Contract theory, by which that obligation arises from a bilateral business between issuer and taker, although the practice has led to change in the direction of extending the business between the issuer of the document and an unknown person. The problems of this theory would be that any defect in the underlying contract could object to the document holder, creating some uncertainty in traffic and its possible limitation for practical purposes, although the latter would have no contractual relationship with the issuer.
This theory has only defense if we stick to the relationship between the drawer and the payee title, because if we extend the range of the debtor relations with the various holders of certificated document, we find the difficulty that they must have an independent right to protect them from the various extracambiarias exceptions might oppose the above holders.
That is why we understand that the contract theory does not explain the autonomous right of the successive holders, which have no contractual relationship with the maker of the cambial.
Among the supporters of the theories contractarians, and Goldschmidt are LIEBE, to argue that there is an agreement of wills between the drawer and the payee title at the time of the signing of the cambial, but that agreement, according LIEBE, tend only to produce the title. Goldschmidt qualifies somewhat the contract theory to determine the drawer hired with the first taker, for this and, at the same time, in favor of an indefinite series of subsequent decision (2).

b) Theory of unilateral business, This theory takes into account the existence of an obligation of the issuer as a unilateral promise, refined for some with the mere issuance, and others with the statement recepticia.
With this theory which is to be generated is a completely autonomous position of these document holders, without being so effective against the same any vice in the causal contract.
In this sense Einert argues that the securities is not the instrument of a contract but an abstract promise, addressed to the general public, to pay pursuant to the clauses in the document. Once implemented the securities, it is detached from any personal relationship between those who took part in its creation. The obligation subscriber is assumed to be an unknown person or before which legitimately holds the title (3).
However, this theory completely obvious causal legal contract and the obligations and rights inherent to the same, at least, between the parties who were of the contract, with what we believe to give a preponderance of the personal relationship certificated, when it should not be so in the case of securities not entered circulation.

c) Theory of law, defending the literal and independent obligation from start to circulate the document, by law. This theory is followed by MOSSA and GARRIGUES. And so MOSSA explains that the exchange law is a formal law, it attaches to the mere creation of the effect of forcing title. The law is what determines the legal effects.
The content of the statement, the intention and the will, they are not essential because the formal system dictates all the rules that regulate the title. The obligor can not set a different legal content. Law alone exhausts the content of the statement (4).

d) Mixed theory that two contracts would. One between the issuer and the primary policyholder, that produce all the legal effects depending on the specific contract that gave rise to the title (for example purchase), may oppose each Contracting all exceptions derived therefrom. Moreover a contract or unilateral promise, which will link the issuer with third parties in good faith to acquire the document, and therefore they are separate legal business originator title.
In this regard VIVANTE (5) He says the source of the certificated obligation is twofold, a contract as the first holder and the unilateral will face the successive holders.

The latter theory is the most similar to the system of exemptions established by the Exchange and Cheque Law, which led to the possibility of raising breach of contract between the parties, provided they are the same that were part of the underlying legal transaction to the issuance of the cambial.

So things, as we stated above, there will be two rights, and therefore two different payment obligations, to coexist until it is satisfied that the amount itself is literally inserted into the title, and it has its legal reflection in Article 1.170 second and third paragraphs of the Civil Code (6).

When entering the securities circulation, will effectively exchange payment obligation, as this is transmitted by the document, but this does not make the payment obligation arising from the underlying legal contract is extinguished, to be suspended until it is satisfied the amount of the cambial.

The biggest problem will be derived when the securities are not transferred and therefore the rights and obligations are confined to the sphere of the parts that were the causal business, since in this case the right certificated will have greater force than the right generated by the contract itself, so the opposition to payment for forced acquire broader than could be generated against any claim of a third person lawfully.

Notwithstanding this, configuration and impact, both material, and procedural, these rights, They will be different both in terms of individuals actively entitled to claim compliance with the obligations embedded in the cambial, as passive subjects entitled to be compelled to comply.

It will also affect a fully directly in terms of actions to bring before the breach, since it will not be the same if what is demanded is the right certificated, if what is required is the causal law, being different also the causes of opposition or exceptions to the payment depending on whether one or other action.

Todas estas consideraciones van a ser fundamentales a la hora de poder interpretar de una manera correcta la posibilidad de oponer la exceptio non rite adimpleti contractus en sede del juicio cambiario, since they depend on the relationship that the litigants have had in the causal legal transaction and the obligation to pay the defendant assumes.

3.- The coexistence of the obligation to exchange payment and causal.-

As we saw in the previous section, There are two payment obligations and differential birth origin, but who live in the securities and therefore may be payable, as appropriate, by creditor.

Do not forget that those obligations will only be effective when double virtuality and the parties that make up the securities (drawer / drawee), they are also of the transaction that gave rise to the cambial, since otherwise, namely, when the title comes into circulation and the lawful holder thereof be a bona fide third party, the right certificated charged causal efficacy against, which will remain in the background and will be released only when the claim is established by who was party to the underlying contract by the debtor.

That is why in this section, after determining the existence and origin of each of the payment obligations certificated / causal, let's get into the study of each of them to determine accurately its foundation, and its effects between the parties.

Regarding the obligation to exchange payment, we must, first, refer to securities, as documents that will open the way the exchange trial, and thus acquire a special relevance in the study of the subject matter, since as discussed, Law will confer certain documents such "privileges" to strengthen the collection via the same, and movement between the different subjects, which will generate coexist different positions on the extent to which the debtor will be able to oppose the payment thereof, as well as the appropriate way to deal with a claim arising from a document cartular.

In defining the securities, doctrine (7) incide en la incorporación al propio documento cartular de una significación o un derecho propio y autónomo, independent of the set came in the agreement that led to the issuance of the title in question and thus forms a payment obligation ex novo, Making reference, for, the double scope of the obligation to pay (causal and certificated) expressed previously, this being relevant when they can determine what type of exceptions we can to oppose the claim in court by the holder thereof.

As characteristic features of securities we can say that these are documents which incorporate a literal and autonomous right, essentially transmissible, and that the exercise of the rights incorporated in possession of the document required (8).

Accordingly exchange payment obligations arising from securities, You have their foundation and exegesis on the principles governing securities, of which we must highlight the legitimacy, the incorporation, literalness, autonomy, and abstraction.

Regarding the principle of legitimacy, and with regard to the standing, It determines that the holder can enforce the issuer first, without having to prove their right to credit. All that is required is that possession with respect to the rules of securities is acquired, as in the case of registered securities, to order or to bearer.

Possession is an indispensable condition so that it can exercise the right that comes attached to the title, so to exercise it must display the document. Siendo por tanto una fictio iuris de que quien posee y exhibe el documento es el titular del derecho, and therefore the obligor must respond before him (9).
As for the passive legitimation, only release the required compliance with the provision that the title carries with apparent front fork of the document, provided that the holding is legitimate (art. 46 ESA) (10) .

It follows that the titles will be awarded pro solvendo. The original obligation is suspended until maturity of the obligation cartular, and therefore the primal contractors who were involved in the causal contract will keep their actions more, as long as the debt which incorporates the title is not satisfied by the debtor, either the creditor or a third party who has acquired in good faith (11).

Second, by the principle of inclusion, the securities have incorporated the right inextricably, since that right without the title can not circulate, both of, and jointly, which shall be transmitted, one body element (document or title), and the other as immaterial (or the right value) (12).

The incorporation of the right to title, and circulation as chattel, exchange makes payment obligation is borne entirely independently of the underlying legal transaction. Therefore the obligor must act differently, when oppose it, as the active subject claiming him, and the action related, since allowing that principle is the coexistence of the obligation and the causal cartular.

Also in the document or title, shall appear literally (13) (written), each and every one of statements intended to be contained therein, and must include the required, the effects of the obligation and the built right, limits, performance by the obligor, etc ...

This makes the payment obligation is perfectly certificated determined when the cambial is issued, since what is set in the letter of the document which will set the right to exchange credit to be broadcast as an autonomous right, regardless of the content and scope of the underlying legal transaction (14), providing objectivity and precision to exchange payment obligation (15).

By the principle of autonomy governing securities, the legitimate holder or third possessor in good faith is unrelated to the previous legal relationships that produce successive transmissions, so to exchange payment obligation will not be enforceable against the vices or events that might have arisen derivatives contracts or legal precedents.

What is transmitted is therefore a possibility of becoming a creditor of forced, to exercise the right that the title contains, born ex novo in each transmission such discretionary right.
Closely linked to the principle of autonomy will be the beginning of abstraction, and this because the transmitted a separate title as a material document that incorporates its own right, the agreement that originated each of the previous transmissions, including first determined the issuance of title, they are to be totally and absolutely unrelated thereof, It is therefore not opposable to the claim of the third holder in good faith (16).

It is therefore so that sometimes the right certificated involved with it the title, and therefore the obligation to pay certificated, has a superior category compared to the original contract, since the constitutive legal transaction may be flawed, not affecting this, as we said, the third holder in good faith, what breaks the principle of civil law anyone can transmit more rights than they have (17), thing I happen to securities.

The obligation to exchange payment, so it may be in the position of having to pay to a holder, the amount reflected in the cambial, although the contract for which it was issued are not complied properly, not being able to assert against the third party in good faith, exception staff.

Although both the principle of abstraction such as autonomy are closely linked, not to be confused, as if for the abstraction of this title it will not be bound to the underlying legal relationship, and therefore obliged to exchange payment may not raise defenses derived from it such as the falsehood, nullity, defaults or non-existence; by title autonomy must be understood is that what is transmitted is a primary law, independent, for, the relationships that exist between the various previous owners and therefore limits the enforceability of personal exemptions that could have been interposed between the previous transferors.

This enhanced protection that the principles studied to provide certificated documents, allows fulfill the function of facilitating the transfer and movement of goods and rights, and becoming a useful tool in commercial activities, whose importance runs hand in hand with documents that reflect commercial contracts, exceeding the, since they allow the circulation of rights and things faster, certainty and security (18). While facilitating the parties involved have a greater guarantee of payment with respect to other types of payment instruments as pure credit transfer, which at no time he is unrelated to the contract that gave rise to the assigned receivable.

This ease and creates transmission security, both, greater confidence and legal certainty in that it provides funding itself derived from the title itself and not of any disputes that may exist in the causal contract, enabling the subsequent transmission thereof through endorsements, without losing effectiveness of recovery of the claim.

That is why the obligation to pay to have the signing of the security, It is no longer only against one with whom he established trade relations, the result of which was issued cambial, but also it arises against the legitimate holder of certificated document whose possession acquired under circulation that is characteristic of the cambial.

With that said it is clear that the issue of the security will coexist two independent payment obligations to each other, whose origin and basis is different, but while the remaining credit in the cambial insert is not satisfied.

While the payment obligation will certificated transmitted along with the title value, for the sake of the principles of abstraction and autonomy, the causal obligation is suspended, and it takes effect only when the amount claimed is literally signed by the policyholder to the debtor was a party to the underlying legal transaction.

This differentiation is essential because the effects of both obligations are different between the parties, and especially regarding the exceptions that the debtor may invoke one that requires you to pay the cambial.

When the holder to demand payment cambial the obligor, it is a third party in good faith, the debtor only assume, in the dual role of the payment obligation, the certificated, and thus only the exchange creditor may raise those exceptions derived from the title itself, ie exchange, since the fork, for the sake of abstraction title, will be completely unrelated to the agreement that led to the issuance of the cambial.

However, in the event that the holder of the cambial claiming the amount thereof, has been party to the underlying legal transaction, together with the debtor, the payment obligation is held in its dual role, ie it will be required to pay both certificated, como causal, and accordingly may oppose, summons against the creditor, both purely exchange exceptions, as those derived from personal relationships between them.

Juan Juan Rafael Sanjose

Alternate Judge of the Provincial Court of Castellón.



(1) Unless the purchaser is the third in bad faith or that the transmission has not been made by endorsement, but by pure credit transfer.

(2) At. Rodriguez Olivera, N., and LOPEZ RODRIGUEZ, C., Uruguayan Commercial Law Manual, vol. 5, I take 1: Securities, And. Culture Foundation University, Montevideo (Uruguay) 2010,

(3) At. MEZZERA ALVAREZ, R., Business Law Course, tomo IV, 8ª ed., And. Culture Foundation University, Montevideo (Uruguay) 2000, pp.. 155 ff.

(4) At. Rodriguez Olivera, N., LOPEZ RODRIGUEZ, C., Law Handbook ..., on. cit.

(5) LIVING, C., Trade Law Treaty, Vol. III, And. Reus, Madrid 1936, pp.. 137 ff.

(6) Delivery of Promissory Notes, or bills of exchange and other commercial documents, will produce effects only when payment had been made, or when the creditor because they had been harmed. Meanwhile, the prosecution for the original obligation is suspended.

(7) At. LIVING, C., Trade Law Treaty ..., on. cit., pp.. 136-137; Uría González, R., Trade Law, 19ª ed., And. Marcial Pons, Legal issues, SA, Madrid 1992, p. 883; MONTOYA ALBERTI, H., New Securities Act, And. Law Gazette, Lima (Peru) 2000, p. 6; SÁNCHEZ CALERO, F. and Sanchez-CALERO GUILARTE, J., Institutions Trade Law, vol. II, 34ª ed., And. Aranzadi, S.A., Low cizur (Navarre) 2011; Chula VICENTE, F., Introduction to Commercial Law, Tomo II, 19th lesson, 22ª ed., And. Pulling Lo Blanch, Valencia 2010, pp.. 1569-1605.

(8) So one could speak of documents necessary, as their possession and display are sine qua non to exercise and transmit the right carries with. In this regard Vazquez BONOME, A., Exchange Law Treaty – Letter, I note and Cheque, 3ª ed., And. Dykinson, Madrid 1997, p. 46., emphasizing the doctrinal origin of the definition of securities, It is reflecting the common characteristics that are occurring in the different conceptualizations.
And so, first, highlights the inclusion of the right to title, in the sense of a support or documentary cartular, with questionable subordination of the right to the title and its material and tangible entity it is capable of possessing and transmitting as a chattel, which it determines that the obligation to exchange payment, when the title comes into circulation through the mechanisms and rules laid down in the LCCH, it is above the obligation to pay causal and therefore the title exchange gain its own autonomy regarding the obligation generated by the fundamental legal transaction.
In the same way, It will be a common feature, the letter of the law that sets its contents, which it is due to the incorporation, so for everything related to the scope of the right in the title, what matters is the objective of writing element contained in the document as defined by the Act. It implies that regardless of the various vicissitudes through which pass the securities in the process of circulation thereof, only the amount may be claimed contained therein written, in the same way that only will have to pay those listed as such in the cambial, being your own obligation delimited clauses that are translated literally in the document.
The legitimation for possession, It is essential in the securities in the sense that the only legitimate to demand the right or transmit the document will be incorporating its legitimate owner, and therefore the obligor should only respond against one who physically present the document and not in front of everyone else who were previous holders and the current holder at a particular time itself could exercise their right, since transmitting the document, They transmitted the inherent right to it.
Finally it is worth noting autonomous marking the cambial, namely, the certificated law is autonomous from the underlying legal transaction, besides being autonomous right exercised by its holder to holders who, if, he had been preceded, which is related to the above in terms of the coexistence of the two payment obligations, if being circulation cambial, leading the certificated against the causal.

(9) That is why there will be a reversal of the burden of proof and that the holder may require the consideration apparent without further obligation, this being, if it considers that there is a lack of lawful possession (for example bad faith), which should prove.

(10) In order to avoid possible duplication or payment requirement, the debtor is allowed to, you comply with the provision, it is returned the title.

(11) In this regard LIEBMAN, E.T., Effectiveness and authority of the judgment and other studies of res judicata (trad. Senter MELENDO, S.: “”Effectiveness and authority of the Judgment "), And. Ediar S.A. Publishers, Buenos Aires 1945, p. 250, He says that the coexistence of shares changes causal and is the manifestation of the objective of actions produced by the diversity of the cause petendi contest, because satisfied either causal or exchange obligations, the other is extinguished.

(12) The incorporation which will allow a more agile movement, quickly and safely built right, since the rules of credit assignment will be avoided, and apply the transmission of personal property.

(13) Principle of literalness.

(14) Notwithstanding this, the law governing each of the securities will determine the consequence arising from the lack of any requirement (For example, in the notes no expiration date, the Exchange and Cheque Act means that they are in sight). The basis of the wording stems from the need for legal certainty must have both the holder and the merchant traffic in general.

(15) In this sense we must keep in mind that as determined GAVALDA, C., and STOUFFLET, J., Commercial paper, cheques, payment card and credit, 2ª ed., And. Litec Paris 1991, p. 10, The exchange law is a formalist Law.

(16) The titles are the abstract form, in the sense of not being linked to the legal relationship based its birth originally encompassed nor to that determined after successive transmissions, so that the obligation to be transmitted is not causal, but the obligation to exchange payment.

(17) No one has more right to the other can be tranfers, He has more than (Domitius Ulpiano – Digestion, 50, 17, 54)

(18) PEREZ DE LA CRUZ, A. "Securities. General Theory ", in MENÉNDEZ, A. and RED, A., (You.), Lessons Trade Law, 8ª ed., And. Aranzadi, S.A, Low cizur (Navarre) 2010, p. 945.

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