By: Elías Arriaza
The enforcement lawsuit filed based on a notarial act in which the debit balance was recorded in accordance with the creditor’s accounting is probably the most controversial enforcement lawsuit, due to the discretion or abuse to which it may give rise.
In fact, there is a bad practice of filing executive lawsuits based on notarial acts in which the notary has merely stated that an account receivable is recorded in the creditor’s accounting records. The accounting record, by itself, is not sufficient for the notarial act to be an enforceable title, since such record is nothing more than the creditor’s own affirmation that a person owes the creditor.
For the notarial act to be sufficient, it is essential that the notary has stated that the accounting record is verified with reliable documents through which the existence of the obligation can be established, the amount of the obligation and that it is enforceable. This is explained below.
Execution lawsuits may be filed when the creditor has a document that the law recognizes as having sufficient force to prove the existence of the obligation claimed. This is in contrast to the proceedings of knowledge, in which the existence of the obligation is still disputed.
In addition, the executory titles must contain a liquid and enforceable amount. By liquid amount it is understood that it is determined or easily determinable. The amount due means that the term to which the obligation was subject has expired or that the obligation was not subject to a term and is therefore immediately enforceable. Also, the obligation must not be subject to another outstanding condition.
Among the documents to which the law recognizes enforceability is, according to numeral 5 of article 327 of the Code of Civil and Commercial Procedure: the notarial act in which the balance against the debtor is recorded, according to the accounting books kept in a legal manner.
One of the rules that the accounting must comply with is contained in Article 381 of the Code of Commerce, according to which: “All accounting operations must be duly evidenced with reliable documents that meet the legal requirements”.
Therefore, in order for the notarial act to be sufficient as an enforceable title, the notary must state that the accounting record is duly proven with reliable documents that allow to establish that the obligation exists, that is to say, that the obligation exists, that is to say, that it is not a legal obligation:
That the obligation exists, that is to say, that there is a consent by the debtor.
That there is a liquid amount.
That it is enforceable. For example, the agreed term for payment has already expired; in addition, as mentioned, it must not be subject to a condition pending fulfillment, such as the delivery of products or the rendering of services.
For example, if the debt arises from a purchase of goods and contracting of services, the documents must be sufficient to establish that the debtor entered into that contract, that the parties agreed on the price or amount of the fees, that the time for payment expired and that the goods were delivered or the services rendered.
The Court should reject the claim when the notary fails to record in the notarial act the documents that support the accounting record or when it is evident that these documents are not sufficient to prove the elements indicated above (consent, liquid and enforceable amount). In such cases it is unnecessary and unfair for the Court to defer the qualification of the requirement until the judgment, since the admission of the claim will imply procedural and economic burdens for the defendant, among them, being subject to attachments or the lifting of such attachments by means of the deposit of the claimed amount or the provision of a counter-guarantee.
In the same example mentioned above, one can think of the injustice that it represents for a defendant to be subject to liens and to have the need to defend a proceeding, when there is not even a document from which it is clear that the defendant entered into a contract for the purchase and sale of products or the rendering of services.
Now, in case the notary has complied with recording the documents that support the accounting record, but there is controversy as to whether or not those documents prove the existence of the obligation, its amount and enforceability, the correct thing to do is for the Court to resolve it in a judgment, based on the arguments and evidence proposed by the parties.
In this regard, the Constitutional Court has repeatedly held[i] that the notarial act intended to be used as an enforceable title must state that the notary has stated:
“…in the creditor’s accounts, the origin and backing of said obligation, its current status duly individualized and determined, having to cite in the respective notarial act the identification of the main books or records, all this so that by means of the individualization of said balance the aspects of the law of obligations that must necessarily concur to constitute the existence of a liquid and enforceable obligation may be established in the notarial act, breaking down the obligation inescapable to the creditor…”
Similarly, the Second Chamber of the Civil and Commercial Court of Appeals stated the following[ii]:
“…It is to be noted by those of us who are part of this Chamber, we consider that the Debtor Balance Statement is not a simple notarial record where the notary only records what is requested, but not as federative is integrating a title with enforceable force, hence the special care that must be taken when proceeding to fraction it, and countersign it with the respective supporting documents and being that it was not complied with to record where the credit that it intends to execute originated from, the total value thereof or the way it was documented…” –
Based on what has been explained so far, the defendant in an executive judgment in which a notarial act is used that does not comply with the requirement of recording the supporting documents of the accounting record, may file an exception of ineffectiveness or insufficiency of the executive title, which should be accepted by the Court.
[i] Among others, judgment issued in case 2538-2011.
[ii] Ruling issued in case 01164-2011-01410.