Debt collection and how to cover credit losses at an international level
>AUSTRIA,< >BELGIUM,< >ESTONIA< >FINLAND,< >FRANCE< >GERMANY,< >HUNGARY,< >ISRAEL< > LUXEMBOURG< >The NETHERLANDS< >NORWAY> <PORTUGAL> <SPAIN
Report by: Mr. Walter Koch, KREDITSCHUTZVERBAND VON 1870, Vienna Austria
The basic requirement for debt collection in Austria is a valid licence. But there is no more need for a special test. The conditions of professional qualification are complied with certain certificates, as definded by § 1 Inkassoinstitute Ordinance (BGBl. 59/2003). On general principle only overdue and undisputed accounts can be accepted for collection. Collection agencies themselves are not allowed to take legal proceedings or to conduct assignments of claim. Creditors protection associations can be particularly efficient in collection because they usually combine a credit reporting agency with a debt collection agency and therefore can produce the best results in debt collection because of the combined information available to the collectors. All together there are about 100 active collection agencies in Austria, most of them have only local importance. Approximately 1,8 Mio. collection cases per year are handled by collection agencies. The general payment terms agreed upon in Austria are 30 days. Naturally that can vary depending on the line of business. Larger companies have a structured debt management system, which includes customer evaluation, setting of credit limits and constant surveillance of the risk. Very often they also have their risks covered by credit insurance. Small companies are not that well organised. Their emphasis is put into sales in the first place and often they forget to review their receivables. Once they get round to doing so it can often be too late. Sometimes they are hesitant about taking action against their customers because they are afraid that they will lose them. Here there is a great need of education and training of people in order to make them aware of the problem. If they fail to collect their own existence is endangered. Usually a company will send at least two reminder letters to a customer, sometimes even more. After that, a decision is taken what should happen next. Most of the time companies prefer to use a collection agency rather than a lawyer.
When KSV is instructed to collect a debt, first of all a written demand letter is sent to the debtor and a letter of acknowledgement is sent to the forwarder (or claimant). At the same time the claim is registered in our data bank and will be noted in all credit reports issued about this debtor.
The next possible steps are:
The results of which can be:
After 4 to 6 weeks a report on the results of our efforts will be sent to the forwarding office together with a recommendation on future action.
The statutory interest rate is:
Besides the percentages quoted above, a creditor is entitled to ask for that percentage which was agreed upon contractually with the debtor. Even without a contractual agreement, a creditor can ask for a higher percentage than the statutory interest if he can prove that he himself had to take out a bank loan for the time the debt was outstanding. Usually banks provide creditors with the necessary confirmation.
According to a decree by the Minister of Economic Affairs, which came into effect on 27 March 1996, collection costs can be charged to the debtor in the amounts stated in this decree. In § 1333 Abs.2 ABGB it is fixed that the creditor can assert necessary costs of appropriate collection, if the debtor is being to blame for delayed payment and the costs stand in appropriate relation to the demand.
The statute of limitations in Austria is generally 3 years for goods sold and services rendered from the date when payment is due. Legal proceedings must be institute within that time period, otherwise the debtor can object and the court will reject the case. Personal loans granted by banks have a statute of limitations of 30 years, but the interest charges accrued are barred by the statute of limitations after 3 years. Claims for which a title has been obtained in court are barred by a statute of limitations of 30 years. If these claims are against private debtors or sole proprietorships they can be pursued in post-legal collection for 30 years.
It is usual business practice to agree upon general terms and conditions between trading partners. The only restrictions are where the terms of the contract are contrary to Austrian legal requirements or public policy. If the creditor wishes to enforce contractual conditions (e.g. payment terms, period of warranty, period of complaints, default interest, pre-legal collection costs, court of jurisdiction, agreement on court of arbitration, etc.) he must prove that these conditions were actually agreed during the business transaction. The best proof is a copy of the conditions signed by the business partner.
Only lawyers are authorized to pursue claims against debtors in court. A power of attorney has to be signed by the claimant before the lawyer can instigate court action. The attorney needs full documentation of the claim as follows:
The usual legal procedures are:
If there is no dispute from the debtor, judgement is passed within 6 - 8 weeks and will be forwarded to the bailiff for execution. If the debtor opposes, the case goes to trial. The duration of the process cannot be specified.
1. Instance
2. Instance
3. Instance
Once a valid judgment has been obtained, there are two usual ways to levy execution:
If execution is taken against a private person, it is of the utmost importance to know his or her date of birth. This is a vital criterion for identification. It is possible to enquire data at the Social Security to find any possible employer. Then the writ will be sent to the employer who is obliged to deduct the distrainable part of the debtor's income.
Retention of title has to be agreed upon contractually by both parties otherwise it cannot be enforced by the claimant. An informal remark on the invoice is not sufficient.
The request to start insolvency proceedings can be initiated by the debtor as well as by the creditor if the debtor admits to having liabilities, which exceed his assets, and being unable to fulfil his obligations towards creditors
The most common insolvency proceedings are:
If the debtor applies for settlement proceedings, the application has to include the following:
If the majority of the creditors does not agree to the application or it turns out in the course of the payment term that the quota cannot be fulfil, bankruptcy has to be initiated. If the debtor has fulfilled the settlement proposal, he is relieved of the rest of his debts.
Bankruptcy is a proceeding, which is governed by a special law, as well as the settlement proceedings. The total assets of the debtor are withdrawn from his disposition and an official receiver is appointed. In the course of the action these assets will be sold off and the proceeds will be distributed to the creditors who will get a certain quota of their registered debt, e.g. 10%. The usual quotas run between 3 to 10%. The company usually stops operating.
In the course of a bankruptcy proceeding a debtor can offer his creditors at least 20 % payable in 2 years. If the creditors consent to this compulsory settlement, the subsequent proceedings are similar to those of the settlement proceedings.
CREDIT CONTROL PROCEDURES
Report by Mr. de Pape, LUDEXPAN, 9000 Gent, Belgium
In Belgium, credit information is obtainable principally through the banks, normally on the basis of an inquiry via the seller's bank. A certain amount of information can also be secured from one or other of the specialised credit information agencies.
Basic corporate information as to capital, directors, etc. (but not necessarily shareholders) is a matter of public record and is available at the Register of Commerce. A copy of a company's annual accounts may be obtained from the Balanscentrale/Centrale des Bilans of the National Bank of Belgium.
Seizures and measures to obtain attachment of assets are also a matter of public record and may be consulted at the beslagregister/registre des saisies, which is maintained by each court for its own jurisdiction. All bills of exchange and promissory notes issues in Belgium which remain unpaid on the due date of payment may be "protested", i.e., be formally recorded as remaining unpaid. A list of protested bills is published on a daily basis and can be inspected at the Office of the Commercial Court. All judgements by which a company is declared bankrupt, whether as a result of its own application or otherwise, are published on a daily basis in the annexes to the Belgian State Gazette (Belgische Staatsblad/Moniteur Belge).
RETENTION OF TITLE
In Belgium, a retention of title clause, even if accepted by the customer, will be of only limited use. This is because the Belgian courts have consistently held that such a clause is not enforceable vis-=85-vis third parties. This means that the clause will cease to be of any real use if the goods pass out of the possession of the customer or, indeed, if the goods are incorporated, physically of legally, into land and buildings.
It also means that in the event of the customer being declared bankrupt, the clause will not be enforceable against the trustee in bankruptcy or liquidator, who is treated as a third party for these purposes. Indeed, in order to be enforceable, the clause must be invoked by the supplier prior to such time as there is "competition" (samenloop/concours) between the creditors for the customer's assets. This will occur, for instance, at such time as the customer applies to be declared bankrupt or for an arrangement with his creditors generally to be approved by the court, or, indeed, if the majority of his creditors have taken steps to attach his assets. However, a properly drafted retention of tille clause will enable the supplier to repossess the goods prior to there being any such competition provided they remain separate and identifiable in the hands of the customer. While it is possible for a supplier to seek such repossession on his own, it is more usual to employ a bailiff to issue a Bailiff's Repossession Writ as there are then criminal sanctions if the debtor ignores the writ and disposes of the goods.
In the event of a renting or leasing arrangements with the customer, upon default the owner of the goods will normally be able to recover the goods placed at the disposal of the lessee.
However, if the goods are placed in premises which are rented by the customer, the seller must notify the owner of the premises prior to delivery, failing which the landlord will have a lien over the goods.
SECURITY
The supplier of a Belgian customer will find that it is not unusual to seek and obtain personal or bank guarantees in order to secure payment. This is because there is no system of registered charges in Belgium (except as described below) nor is there any system of chattel mortgages.
A mortgage is possible but only over real property and the creation of a mortgage involves payment of a registration tax equal to one per cent of the amount secured.
Floating charges do exist in the form of a charge over the business (pand op het handelsfonds/gage sur fonds de commerce). However, such a charge may only be created in favour of a bank or recognised credit institution and may not be created in favour of an ordinary commercial supplier, who at best may attempt a back to back arrangement via a bank established in Belgium. This is not a very common procedure, the cost of which is accordingly negotiable with the bank. As long as such a floating charge is registered it will be effective in bankruptcy despite there having been no bank advances pursuant to it, even if granted in an immediate pre-bankruptcy period. The floating charge holder, unlike his UK counterpart, is not in a position to appoint a receiver and manager tot operate the business; rather, he is limited to the right to apply to court for the purpose of having the business sold and paying himself out of the proceeds (the business remaining in the hands and day tot day operation of the debtor in hte meantime, without any provision for court supervision).
Any guarantee should be carefully drafted as it is important that the person or company giving the guarantee waives a certain number of rights which he is otherwise entitled to under the Civil Code and which have the effect of retarding the calling and implementation of the guarantee.
Suppliers of machinery, plant and equipment to companies in Belgium are well advised to register a certified copy of their invoice with the office of the court having jurisdiction over the area where the customer is located Provided this registration is done within 15 days of the date of delivery, it will serve to create a lien on the goods. This lien is valid until the invoice is paid for a period of five years and remains enforceable even in the event of the customer being declared bankrupt or the goods being taken in execution by a judgement creditor. Such lien, however, unlike a UK registered charge, does not confer any rights of repossession, giving only a right of preferential payment out of the proceeds of the goods in the event of bankruptcy.
As these registrations are not automatically cancelled when the debt is paid, the registry is, unfortunately, not very useful as a credit assessment tool.
Goods may be pledged to secure a debt but in order to be valid the goods in question must be removed from the possession of the customer and placed with the supplier or an agreed third party. Banks and credit institutions, but not ordinary suppliers, may take a pledge over invoices and thus acquire a lien over the account receivable.
DEPT RECORVERY
NOTICE TO PAY
Prior to issuing proceedings or instructing a collection agency, it is normal to put the customer formally on notice to pay. This is done by issuing a registered letter stating the principal amount due and requiring payment from the customer. It is customary for the letter to state that, failing payment within 10 of 15 days, proceedings will be commenced.
The letter may be issued by the seller himself, but should be in the language of the customer, either Flemish or French depending on where he is located, and must be sent by registered mail.
Apart from being a normal step prior to the introduction of proceedings, the notice to pay also serves automatically to initiate interest charges for late payment. In the absence of any contractual agreement, interest is charged at the statutory rate. This varies from time to time but is currently 8 per cent per annum.
COLLECTION AGENCIES
There are various collection agencies in Belgium offering debt collection services at competitive rates. These agencies are, however, hampered by the fact that they are not themselves in a position to obtain court judgements on behalf of their clients.
Where the supplier has a notarised document evidencing the debt which permits execution without judgement being obtained, collection measures may be enforced directly against the customer by a bailiff (gerechtsdeurwaarder/huissier de justice) without any court order of authorisation.
COURT PROCEEDINGS
As mentioned above, formal proceedings are normally preceded by the issue of a formal notice to pay. If there is no ensuing payment within the stated time limit, it is normal to commence proceedings.
Except in certain specific circumstances, proceedings are initiated by the service of a writ. Service is performed by a Belgian bailiff. The costs of serving the writ will vary from case to case but, for service in Belgium, are unlikely to exceed 5.000BEF= (approximately Ecu 125).
Proceedings are generally introduced before the court having jurisdiction over the area in which the defendant's business is located. However, where a specific choice of another jurisdiction has been made and accepted by the customer (for instance, in the seller's general conditions of sale, which have been accepted by the customer), proceedings may be commenced in that jurisdiction.
Provided the defendant is a business, whether incorporated or not, proceedings are conducted before the Commercial Court (Rechtbank van Koophandel/Tribunal de Commerce). However, if the amount claimed is 50.000BEF or less (approximately Ecu1.250) proceedings are introduced before a minor judge (juge de paix)
The writ takes the form of a summons to appear at an introductory hearing.
This normally takes place 10 to 15 days after the date of notification of the writ, but this period is extended if the defendant is not located in Belgium.
Judgement may only be obtained at the introductory hearing if the claim is not contested, or if the defendant does not enter an appearance. However, if the plaintiff is in possession of irrefutable evidence in the form of an earlier written acknowledgement of the debt, it is sometimes possible to obtain an immediate judgement, even if the debt is now contested by the defendant.
Where the defendant does not contest the debt he can usually obtain the agreement of the court to allow him to make payments by instalments over a period of time. Payment will then include the principal amount as well as interest and costs.
If a judgement is not obtained at the introductory hearing, the case is postponed until such time as the parties have exchanged written submissions or pleadings via their lawyers. In practice this can involve quite considerable delays and it is not unusual for a case to go on for 12 months or more.
The judgement will be for the principal amount due as well as interest and costs. However, in the latter respect, it is important to realise that awards for costs cover only a very small part of the fees normally due to lawyer for legal representation. Once obtained, a judgement may then be enforced against the defendant's assets.
Assets may be directly attached by seizing them, in which case they are sold-off by the bailiff, and assets of the debtor in the possession of a third party and debts owed by a third party to the debtor may be seized by way of an order made against him after he has been summoned.
Each party has an automatic right to appeal any judgement and no specific leave to appeal is required. Whether or not the first judgement is executed in the meantime, pending the results of the appeal, will depend on the terms of the first judgement. If the first judgement is declared to be executory, the defendant may avoid seizure and measures of distraint by consigning the required amount to an agreed third party, normally a bank.
There is no satisfactory small claims procedure in Belgium.
PRESERVATION OF ASSETS
Where the supplier can show that there is an urgent need to attach assets of the debtor to satisfy his claim, he may obtain a bewarend beslag/saisieconservatoire. This order, which freezes the assets in question, is obtained on an exparte basis and is roughly the equivalent of the English Mareva injunction. The order may also apply to assets in the possession of third parties. Special rules apply to ships.
In certain circumstances, it is also possible to obtain an order placing goods under the protection of a sequestrator, who has the function of a temporary trustee.
ARRANGEMENTS/SUSPENSIONS
Arrangements with creditors take the form of a concordaat/concordat, which is a court sanctioned general arrangement with creditors available to sole traders or companies which are deemed to be in good faith.
Application is made by petition to the court, the petition to include a description of the applicant's financial situation and his proposals for (partial) payment of the creditors. Once a petition has been filed, creditors may no longer seize or otherwise attach the applicant's assets. A creditor's meeting is convened. By the same token, the applicant may not dispose of, or charge its assets, without court approval and the proposed arrangements is binding on all ordinary creditors if accepted by the majority in number of creditors (representing at least two thirds of the applicant's total indebtedness), and provided it is accepted by the court.
Creditors having statutory rights to preferential payment are not bound by the arrangement and do not participate in the procedure.
The applicant debtor, even if the arrangement is accepted by the creditors and authorised by the court, remains liable to pay all of its debts, even though this may seem to contradict the notion of agreeing to partial payment. The partial settlement is binding on the creditor, but if the debtor again becomes solvent in the future, perhaps even years later, the creditor is able to enforce its claim for the balance.
It is not unusual for debtors to attempt an arrangement where they agree to abandon all their assets to their creditors, the assets being administered by one or more liquidators.
Belgian law also provides for a court sanctioned suspension of payments procedure, equivalent to a sort moratorium but this is rarely used in practice because of the procedural difficulties involved.
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Report by: Mr. Marko Paabumets, Law Office Paabumets & Hint, Tartu, Estonia
I. In view of development processes taking place in the society of the Republic of Estonia, general approach to European scheme of society can be stated. Foreign investments into Estonia and opening of new markets via Estonia to East have given rise to economic boom resulting in various legal relations between partners. Arising of debts is inevitable, but it is essential for the creditor to be able to check grounds for arising debts and possibilities for recovery of debts. Up to date it is possible in Estonia to check debtors solvency by credit reports, as well to gain information from the State Register of Companies. Proceeding information on partners solvency helsp diminish risk in carying out transactions. The creditors claims that we have been handling so far, result in majority from commercial transactions and wtih reference to it we would like to discuss primarily claims arising from business commercial transactions. The claims have been based on violation of obligations by debtor. However, creditor's claims haven't been always arising from contractual relations which complicates their collection, as well in case of overdue payments the collection of interests andd forfeits. Collection of interests andd forfeits, according to the legislation of the Republic of Estonia, presumes the existence of agreement on both parties. For the same reason it is essential that there exxists a written agreement on both parties where rates of interest and forfeits and their means of collection are stated. If claims are not based on written agreements, we try to negotiate an agreement with the debtor where in most cases we have achieved the debtor's acceptance of claim and date for settling the debt and payment of interests and forfeits.
II. Practice shows that it is possible to achieve these agreements, but signing of agreement presumes the provision of respective authority to a collection agency by the creditor. If agreement is not achieved, legal proceedings come under consideration. Hereby, we present you a brief review on filing lawsuits, limitations to filing suits and state duties in Estonia. In pürotecting justice by means of lawsuit general limitation period for filling suits is ten years, except claims to which abridged limitations are applied by law, or which are non-applicable to limitations. Limitation is not subject to changes by involving parties, if not established otherwise by law. A person can appeal to court to protect ones violated or disputed rights regardless of limitation. Court aplies negative prescription only on demand of an interested party. In case a sjit is filed after a period of llimitation (negative prescription of a suit) and an interested party demands the appliance of negative prescription of lawsuit, court nonsuits the claim.
Status of limitation is not applied
1. Court costs depend on the amount per claim: - in case the amount per claim is 10.000 EEK or less, the court is 6% of the amount per claim, but not less than 10.- EEK. - 10.000 EEK up to 50.000.- EEK - 600.- EEK + 4% on the sum exeeding 10.000 EEK - over 50.000 EEK - 200.- EEK + 3% on the sum exceeding
50 EEK
1. To file an appeal on the lower court's decision, same rates as under primary filing to the first tier ccourt are applied. A complaint is filed to court according to defendant's residence. A complaint against a juridical person is filed according to an adress of juridical person.
INTRODUCTION RESOLVING CIVIL DISPUTES IN THE ARBITRARY COURT OF THE ESTONIA COUNCIL OF COMMERCE
In Estonia besides state civil courts it is also possible to resolve economic disputes in the arbitrary court of the Estonian Council of Commerce which is a non-state institution. An advantage of arbitrary court in front of civil court is thee fact that arbitrary court gives possibility to resolve civil disputes faster because taking into consideration the fact that civil courts are hevily overloaded with work, the procedure can take years. According to the regulations of arbitrary court, a case has to be resolved as quick as possible, but not later than during thee period or six months from filing a complaint together with submitting additional documents to arbitrator or arbitrators. Disadvantage of arbitrary court procedure is that the judgments of arbitrary courts are final and not subject to appeal. At the same time civil proceduree give possibility to make an appeal on judgments of thee first tier and appellate court to the trial of higher tiers (proceedings from three-tier court system). "The law of the Republic of Estonia on the arbitrary court of the Estonian Council of Commerce" is a legal basis of the arbitrary court of the Estonian Council of Commerce. According to Clause 1 of the above law "The arbitrary court of the Estonian Council of Commerce (hereafter arbitrary court) is an intermediate court formed by the Estonian Council of Commerce on permanent basis and which resolves disputes arising from contractual and civil law relations, among them also disputes arising from foreign trade an other international economic relations". According to Clause 2 of the above law arbitray court resolves disputes on grounds of complaint if: both parties agree in written to submit a dispute having already arisen or a dispute that might be arising to arbitration consent for resolving a dispute in abitrary court has been expressed by a plaintiff with filing a complaint, and by a defendant with an acitivity which states his or her voluntary subjection to the jurisdiction of arbitrary court; - a dispute comes under the jurisdiction of arbitrary court resulting from international agreements.
Arbitration cost depends on the amount per claim according to the following scale: - in case the amount per claim is 50.000 EEK the arbitration costs makes 10-20% pf the amount per claim, but not less than 5000.- EEK - for 50.001 - 100.000 EEK the arbitration cost makes 8-16% of the amount per claim - for 100.001 - 500.000 EEK the arbitration cost makes 6-12% of the amount per claim - for 500.001 - 1.000.000 EEK the arbitration cost makes 2-4% of the amount per claim The decisions of arbitrary court are final and there is no direct right to appeal and protest. If the decisions of abitrary court are not being enforced in time, they fall under enforcement according to the law on process of execution of 21.06.1993.
According to the law on process of execution which became effective on 21. July 1993 the following decisions are subject to enforcement:
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Report by: LL.D., Professor Raimo Immonen, LAW OFFICE YRJ(tm)
LEHTONEN, JARI MALINEN & CO LTD
In Finland we do not have any law on the debt collection business yet, but the preparation of a legislative proposal is going on. The new law is expected to come into force in the year 1997. While waiting for the new law the collection activities can be carried out without any license or specific regulations. The serious collection agencies as well as the lawyers do, however, follow the manner of good debt collection practice.
In Finland we have relatively good possibilities for getting information on the financial situation of the possible trading partner. Credit reports are of good quality and easy to get when we are dealing with business-to-business operations. A normal credit report is not very expensive, but the more cheaper way is to make a basic investigation and checking whether the partner has registered payment defaults or not. Basic information can be received also from the Trade Register. Credit report on a private person is not available, when the person is not a businessman but an ordinary consumer. Due to the legislation in Finland you can only get information on the registrated payment defaults. Adresses of private persons can be checked through a national database maintained by the Population Register Centre.
Amicably When a collection agency has received an order to collect the first step to taken is to send the debtor a written payment request. This payment request should include at least the following information:
It is customary to contact the debtor by phone, if he does not contact the collection agency himself or pay the claim. The possible dispute of the claim is often learned at this stage, which helps one to make a decision concerning the further steps to be taken. If the debtor fails to pay the claim immediately and the claim is not disputed, it is normally recommendable to make an agreement concerning a payment schedule. If the debtor does not pay the claim voluntarily and the investigations show that he is not totally without assets, legal proceedings can be started with the permission of the creditor.
The three-step hierarchy of the courts with jurisdiction in private civil cases is following:
In Finland collection agencies are allowed to represent the creditor before the court. It is, however, recommendable to rely on a lawyer at least when we know that the claim will be disputed in court. A simplified procedure to get a valid judgment is summary summons procedure. This summary procedure resembles the former dunning procedure, although there are many differences, too. A brief application for summons is filed in the district court. The defendant is requested to answer in writing within a time limit (normally 2 weeks). If he does not dispute the claim or answer at all, then the court can decide the case at this stage in the written preparation. The same applies to cases where the debtor does not in his answer give any basis for his disputation or he is only referring to a basis which has no affect on the matter. If the claim has been disputed from the very beginning or the debtor would contest the claim during a summary procedure, then a detailed application for summons is demanded. Besides the justification of the claim also all evidence should be revealed at this stage. The preparation proceedings start at first with written proceedings followed by oral proceedings. The last stage is the main hearing in court. According to a general rule the losing party will have to compensate the legal costs of the winning party. The compensation ordered by the court may, however, not cover all the costs involved. The minimum costs are estimated to be approximately FIM 2 500,00. This amount covers both the summary court proceedings as well as the recovery proceedings. The enforcement of the judgment has to be applied separately. Recovery proceedings in a civil matter are conducted by the town bailiff or by the rural police chief. Execution is first levied on the debtors income, his movables and his real property. The execution authorities are overburdened with work which leads to the fact that the proceedings can take even several years.
In Finland the provision on reservation of title has to be separately agreed upon. The mere making, on the invoice, of a reference to a provision on reservation of title is held to be a unilateral notification on the part of the seller and does not bind the buyer. The validity of the provision on reservation of title is affected by the nature of the object of the sale and by the purpose for which it will be used. The provision is binding in situations in which the buyer is in a state of bankruptcy or is being distrained, in so fas as the object of sale has been intended for his own fixed use. In so far, however, as the object of sale has been intended for re-sale or for attachment to some other enterprise, then the provision on reservation of title does not bind in situations of bankrutpcy. In the latter case, the object of sale is the property of the purchaser of the bankrutp`s estate.
Legislation concerning period of limitation has changed in Finland on 1.9.1994. The new regulations are applied to those obligations borne after 1.9.1994 between businessmen and consumers. The previous regulations are applied to older obligations and these provisions are similar to the law in force concerning business-to-business trading. The period of limitation is nowadays only three years, if we are dealing with the consumers. A judgment concerning a claim is, however, valid for ten years. A general rule concerning commercial claims is that the period of limitation is ten years calculated from the origin of the claim. There are, however, several exceptions (e.g. provisions concerning bills and cheques). In collection business the most important exception to the above rule may be the provision that absolute suretyship of the guarantor becomes statute-barred one year after the date of maturity of the debt. This period can be interrupted only by legal action whilst in other cases also other methods can be applied.
Interest can be added to unpaid bills in Finland. Previously there was in force a rate of 16 %, but from the 1.5.1995 the amount of interest is subject to annual change. The rate of interest on overdue payments is bound to a reference rate yearly fixed by the Bank of Finland. The rate fluctuates in the light of changes in the general interest rate. This year, 1996 the reference rate is 6 %. In so far as there is a contract of interest and the parties have made an agreement concerning the rate of interest the rate of delay interest is the agreed rate
+ 4%. The rate of delay interest can in this case, however, not be higher than the above mentioned reference rate + 10 %. The parties may also have made a contract of interest, but have not agreed about the rate to be applied. In these cases the delay intrest is reference rate + 4 %. The ordinary situation is that there is no agreement on interest or delay interest. This is usually the case when we are dealing with unpaid bills. The rate of delay interest is then reference rate + 7 %. As the reference rate is now 6 % it means that the rate of delay interest is today 13 %. The above mentioned regulations of the law have to be observed in cases where there is a consumer as a debtor. In business-to-business trading it is possible to agree on a higher rate of intrest. The creditor can in these cases, where the debtor is a firm, refer to a commercial practice too. For the agreement on delay interest to be incontestable, the amount of intrest should be clearly set forth in the contract. Calculation of the interest starts normally from the date of maturity. If this date is not agreed in advance, then the calculation starts one month after the date when the creditor did send an invoice to the debtor (or otherwise demanded payment) and duly informed the debtor about the duty to pay interest.
It is very important that a foreign creditor turns the account over to a collection agency without delay. The best collection result is received by this way. The possible disputing of the claim and the grounds for it should be investigated thoroughly. The creditor should inform the collection agency about any reclamation and any ground for it. Legislation is changing in Finland all the time and it is important that also the foreign partners follow up the changes by reading e.g. newsletters sent by their local partner.
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Report by: Jean-Claude Soulard, FRANCE CONTENTIEUX, Mazamet, France
It was only in rather recent times that a few French agencies showed interest in debt collection resulting from international trade. It is still nowadays in FRANCE a limited gap in the market, which requires a particular specialization with staff knowing foreign languages, legislations of foreign countries, and business common practices in international trade relations. Debt collection in FRANCE requires about the same methods and means as in other countries of EUROPE. Debt collection professionals always do their best to try and build up with the debtor a dialogue, which in many cases leads to an amicable settlement of the debt. This dialogue, which enables to know well the debtor and to assess his financial situation, results very often in a payment of the debt, either cash down or in several monthly instalments and most of the files which are dealt with by amicable means are settled in a rather short time (from one to six months).
When the debtor refuses to make any payment, either because he is dishonest, or due to the weakness of his financial situation, it is time to act drastically by legal action. But first, it is opportune to determine as precisely as possible what his solvency actually is, in order to estimate the chances of success of legal action. Whenever it is possible, it's also necessary to define in advance if there is a serious dispute, which in that case should absolutely be studied carefully before starting legal proceedings, in order to avoid bad surprises. As regards legal proceedings, according to French law, debt collection agencies are themselves allowed to prepare writs of summons and to litigate before Commercial Courts. However, for greater convenience, most agencies resort to Lawyers corresponding to each Court, and in order to be represented in every part of the country, they need to have at their disposal a network of more than 200 specialized Lawyers. According to French law, legal action has to be taken before the Court of which depends the debtor's domicile. But this is not an absolute rule for commercial claims; as a matter of fact, the parties can go against it by agreeing upon a clause determining the competent jurisdiction to a Court up to their choice. However, for private claims, this rule can't suffer any exception. Time limits to obtain a judgement are basically variable. On the one hand, some Courts are overloaded with work and are abnormally slow in passing their sentence; on the other hand, the Lawyer of the opposing party can, by tricks of procedure, drag the case out for several months. Usually, the time limit to obtain a sentence can vary between one month to one year after the date of the writ of summons, but the average time limit is two or three months. For the purpose of legal action, it is obviously necessary for the creditor to prove the reality of his claim. When there are accepted drafts, it is sufficient to present them in original with the corresponding copies of invoices. If there are no accepted drafts, it is necessary to prove the order as well as the delivery of the goods; or in case of provision of services, the contract or document which serves as a contract must be supplied to the Court. French law binds the creditor to certify his invoices and statements of account as true to his account-books.
The term of limitation for accepted drafts is of three years after their redemption date; this is an absolute statute of limitations; after three years, law states that the payment is supposed to have been made. When the debt is materialized by accepted drafts which are too old, it is important not to refer to these drafts during the proceedings. International transport claims are subject to the statute of limitations enacted by the C.M.R. International Convention (one year plus three months after the delivery date). There is an exception to this rule, if the parties have a common running account in debit and credit. As regards the statute of limitations for business-to-business claims in general, the term is of 10 years. Claims resulting from supplies from businesses to private individuals are barred by limitation after two years, unless there is a contract or an acknowledgement of debt signed by the debtor.
Once the judgement has been passed, and the debtor invited for the last time to settle voluntarily his debt (if necessary by instalments), then to enforce the judgement, debt collection professionals must resort to a bailiff who benefits from a monopoly imparted by law. These enforcements unfortunately give mediocre results. As a matter of fact, there is a limited number of bailiffs in FRANCE : 2.500 offices only for the whole country. Moreover, economic developments increased considerably the number of judgements to enforce, and bailiffs face great difficulties in giving satisfaction to creditors by proceeding to an enforcement within a reasonably short period. No remedy can be provided for this trouble concerning claims on private individuals. But as regards business-to-business claims, when the bailiff's action is successless after two or three months, the creditor's representative can efficiently take the case before the Court again in order to have the state of suspension of payments established and to request a judgement of bankruptcy. Very often, this drastic action enables to obtain cash-down payment of the debt, and this is a really efficient weapon towards debtor businesses. This is why, concerning business claims, a file can seldom remain without solution after a six months period further to the order to pay judgement. In the normal course of events, a debtor business pays before or after judgement, cash or by instalments, and otherwise he is systematically declared bankrupt.
As in some other countries, we have in FRANCE a simplified procedure called (r) Injunction to Pay » which is reserved for contractual claims. This procedure is often used for claims concerning private individuals. The claim can be filed by the creditor's representative, without having to resort to a Lawyer, the assistance of whom is absolutely necessary only in case of opposition. However, this procedure is not very frequently used for business-to-business claims because of the strong temptation for the debtor to put up opposition in order to play for time. As a matter of fact, French law makes opposition considerably easy: It can be raised by simple letter or notification addressed to the Clerk's Office of the Court, it doesn't have to be well-founded, and the provision on costs resulting from the opposition is payable by the creditor... And paradoxically the debtor becomes then plaintiff on opposition, and is consequently in a position of major part in the procedure, and can this way paralyse the action of Justice for many months until a decision be rendered. For all these reasons, concerning business-to-business claims, this injunction to pay procedure in exceptionally advisable for low outstanding amounts only.
French legislation provides that claims have to be lodged within a rather short time with the Official Receiver, now called (r) Représentant des Créanciers . For foreign suppliers, it has to be made within four months after the date of the adjudication order. After this deadline, it is possible to file a request of debarment relief before the Court, but such a request has to be filed within one year after the date of the adjudication order. The costs of about FRF2.000 are payable by the creditor. After one year, according to French law, the debt is considered as extinguished. We have to specify that in case of bankruptcy, there are two different kinds of proceedings : first of all, the so-called procedure of (r) Redressement Judiciaire » which places the company under Court control during a certain period of time when the possibilities of a composition to creditors are studied, and the company goes on trading for all that period. The (r) Redressement Judiciaire » leads sometimes to a composition (or payment plan) for creditors, but more often it is converted into a (r) Liquidation Judiciaire ». It can also lead to the sale of the firm, without any profit for unsecured creditors. The (r) Liquidation Judiciaire » is the simple bankruptcy : The Official Receiver is entrusted by the Court with the liquidation of assets. At the end of the proceedings, unsecured creditors may sometimes obtain a dividend, the amount of which is generally modest. Please note that most of the bankruptcies are closed without any payment to unsecured creditors, but the registration of the claim on liabilities of the bankruptcy enables to prove the loss on the fiscal point of view. Both these procedures of either (r) Redressement Judiciaire » or simple bankruptcy take a very long time. We generally can't give information for one year or often more.
According to French law, to be valid, this retention of title clause should have been accepted, either explicitly or implicitly by the purchaser, at the latest on the delivery of the goods. An implicit acceptance results generally from the order confirmation sent to the purchaser and on which this clause appears. An explicit acceptance results from the signature of the delivery note by the consignee of the goods, provided this clause is clearly written on the said document. It can also result from an agreement between the parties (order or sale contract signed by the purchaser), or even sale conditions which would be previously accepted. In case of (r) Redressement Judiciaire » or bankruptcy, should the above-mentioned conditions be fulfilled, an action for recovery of goods can be taken before the Court within three months after the adjudication order. The supplier bears the costs of this action, which amount to about FRF 2.000 to FRF 3.000. He also bears the costs incurred for the return of the goods should it take place. According to French law, the supplier has no more rights over the goods once they have been resold to a third party, this means that the retention of title clause is applicable only if the goods are in stock at the purchaser's premises. These goods also have to be in their original conditions, that is to say not incorporated with other goods into the purchaser's products. The success of such an action is therefore uncertain, because it is generally difficult to know at starting the action whether the goods have already been resold or not. However, the supplier has rights over the selling value of the goods as long as these goods haven't been already paid by the third party to the supplier's direct purchaser. This means for example that if the debtor resells part of his stock during the few weeks before the adjudication order, a payment can be obtained according to the application of these rights. But even if the creditor follows scrupulously the above advices, we can give no certainty that he will recover the goods or their value, particularly if the delivery was made a long time ago. According to our experience during the last few years, these actions nonetheless give rather good results in many cases when deliveries are recent. The retention of title clause can also be refered to out of a bankruptcy context, and it can be interesting to take such an action when the financial situation information on the purchaser becomes unfavourable and lets fear the loss of the outstanding account.
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Report by: Mr. Roland Bitz, Lawyer, LIC Deutschland GmbH, Cologne, Germany
a) Upon receipt of the collection order, LIC Germany sends an initial demand letter to the debtor. Payment is requested within 15 days. At the same time first investigations are made. All data provided by the creditor is reviewed and further information is established:
e) If there is no reaction to the first demand letter, the file is assigned to the contractual lawyers of LIC Germany. The debtor is sent a second notice by the law office at no additional costs to the client. Another period of 15 days is set.
f) Has the 2nd period expired without any reaction of the debtor the latter is personally contacted by telephone - if possible - in order to negotiate an amicable solution of settlement. The staff of LIC Germany attempts in particular to have the debtor acknowledge the debt in writing or to have him settle the outstanding amount by instalment payments. Any objections raised by the opponent are discussed and - if possible - refuted.
g) In case the debtor does not keep his engagements a third and final notice is sent.
h) If despite of all efforts no amicable collection is possible, the client is advised on the chances of successful legal action and on the costs that may incur. Upon the client's request further enquiries on the debtor's solvency are made. If legal proceedings are recommanded and no indications for the debtor's insolvency are given, the client is requested to make an advance payment of legal costs.
In Germany, judicial debt collection cannot be carried out by a collection agency. The German law does not permit a collection agency to represent a client in court. Accordingly, a German collection agency is compelled to cooperate with a lawyer to have the clients represented in court. In order to obtain an enforceable judgement the German law provides two procedures:
The application of a default summons is an inexpensive and timesaving way of obtaining an executory decree against a debtor. A lawsuit usually takes much longer and envolves much higher costs. However, a default summons is only advisable in cases where the debtor has not yet raised an objection to the claim. If the opponent has already raised an objection, the creditor should immediately file a lawsuit with the court.
a) Process of Default Summons (Simplified Procedure) An application for a default summons is filed at the competent district court. A default summons is rendered and served upon the debtor by the district court. The debtor may lodge a protest within a period of 14 days after service of the default summons. His objection does not have to be substantiated at this stage. If the debtor does not submit a protest against the default summons or if he does not submit the protest in time, the creditor can apply to the court for the issue of the writ of execution, thus obtaining an executory decree. The debtor now has another period of 14 days from the date of the service of the writ of execution in order to lodge his protest. - If the debtor neither objects against the default summons nor against the writ of execution, the writ of execution becomes unappealable and enforceable like a judgement. - If the debtor has raised an objection against the default summons in due time, the default action is closed. In order to obtain a writ of execution, judicial proceedings have to be instituted. As judicial proceedings envolve considerable costs, the clients are thouroughly advised on the case and on the chances of successful litigation. If they wish to proceed, LIC Germany requests another deposit of legal fees in order to meet the additional expenses. - If the debtor has raised an objection against the writ of execution in due time, the matter is committed for trial without delay. In this case the default summons turn automatically into judicial proceedings and the court will assign a date for a hearing. The creditor has no influence on this development. Within a period of 2 weeks the plaintiff is requested to settle the additional court costs and to substantiate the claim. Further documents needed to proof the debt and the requested addi- tional funds should be forwarded by the creditor without delay. Proceedings cannot be stopped temporary because the writ of execution is enforceable despite of the debtor's objection. In the course of the hearing the court is examining the justification of the writ of execution. The writ of execution is either confirmed or reversed. In the event that the creditor does not wish to proceed with litigation or to have further expenses, the action has to be withdrawn. All legal costs - including the costs of the defendant party - are then to be borne by the creditor.
b) Judicial Proceedings (lawsuit) If a debtor disputes a claim and refuses payment definitely, an executory decree can only be obtained by suing the debtor. Since litigious proceedings envolve considerable costs, LIC Germany always requests a deposit before such proceedings are instituted.
c) Legal Costs In Gemany all legal costs - whether they incur by a default summons action or by judicial proceedings - are to be borne by the defeated party unless the latter becomes insolvent.
If a writ of execution or a judgement is obtained, enforcement proceedings are issued. The forced execution can be carried out as follows:
a) General Execution Seizure of the debtor's movable property by the bailiff (e.g. furniture, stock, automobiles, etc.)
b)Garnishment In particular attachment of bank or postal account and wage garnishment.
c)Execution of Real Property E.g.: forced auction of land.
d)Petition for the Affidavit of Means If the forced execution of the debtor's movable property has been unsuccessful, the debtor has the obligation to submit a list of his property and swear by oath t o the correctness and completeness of his statements. After a debtor has submitted the affidavit of means, he is registered on the list of debtors which is kept at the district court. Once registered in the defaulter's book, a debtor becomes unworthy of credit. No bank will further give him any credit.
e)Petition in Bankruptcy If all enforcement measures have been fruitless, there is still the possibility to file a petition in bankruptcy. However, a petition in bankruptcy may cause very high costs, and once bankruptcy proceedings are instituted, unsecured creditors are usually not provided with a dividend. A petition in bankruptcy could only be used as a kind of pressure on the debtor.
Due to data protection and decentralization of public registers it is rather difficult to obtain reliable information on a debtor in Germany.
Claims of merchants, manufacturers and craftsmen with respect to the delivery of goods and rendering of services are barred by the statute of limitation
The period of limitation always begins at the 31 December of the year in which the claim arise. The statute of limitation is interrupted by a written promise to pay, a payment, a written acknowledgement of the debt or by starting legal proceedings.
With respect to business transactions among merchants, interest of 5 percent can be claimed from the date of maturity.
Retention of title can be agreed in Germany without any reservations. However, a retention-of-title clause only becomes valid if it was agreed when signing the sales contract. Thus, a retention-of-title clause must already be indicated on the offer or at least on the acknowledgement of the order. If the retention-of-title clause is only indicated in the general terms of trading it must explicitly be mentioned on the order form or on the acknowledgement of the order that the creditor's trading terms are applicable. It is principally not sufficient if the retention-of-title clause is only indicated on the invoice. The creditor must proof that the retention-of-title clause has effectively been agreed. It is therefore recommanded to agree on a retention-of-title clause in writing.
The creditor should attach to a collection order the complete documentation of a case, i.e. copies of orders, invoices, reminders for payment, the acknowledgement of the order and proof of delivery. If the claim is disputed, the creditor should also attach the relevant correspondence.
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Report by: SIGMA Credit Management Company Ltd, Budapest Hungary
There are two main methods for debt-collection. One of these is amicably settlement of th claim, the other is the legal proceedings. While the first method can be used by debt collecting firms, the second one only practicing attorney at law as representative of the creditor. There are no legal rules regarding amicable settlement. After the claims have been registered with the firm, a demand for payment is made. This is normally done by letter, telegram, telephone or in some cases a visit is made to the debtor. In the case of willing but slow payers, the firm will be more sypathetic and allow more time to pay than in the case of "professional debtors". The reminders to pay always give a deadline. By visiting the debtor or by discussing the matter over the telephone, the firm is able to advise the debtor that legal action is imminent, that is likely to involve him in great costs and to point out the advantages of an amicable settlement. The legal proceedings are regulated by the code Civil Procedure. In accordance with this there are two different procedures for debt-collection. One of them is the more simple and quicker, the default (payment) summons, while the other is the civil action. The default summons can be asked by the creditor. Debts under HUF 200.000,00 (US 670,00) can only be collected this way. For its issuance the knowledge of the debtor's exact address is indispensable. The court issues the default (payment) summons without holding a court hearing unless it finds the claim has no legal title or its existence is uncertain or the demand is directed to elude law. In this latter case the court holds a hearing and considers the petition as a petion for suit. Upon issuance of this summons the debtor has to pay off the debt or it can contradict the summons in fifteen days. In the latter case a legal proceedings is automatically started. The legal proceedings are started by a petition for suit. The Hungarian legal system at the present moment is two-level, so against the judgement of the court of the first instance an appeal can be lodged at the court of appeal. In that case if any of the parties thinks that an infringement of the law was committed during these two procedures he can ask the special procedure of the Hungarian Highest Court. The judgment of this court is final. There is possibility for the reopening of thee case for five years after the date of the judgment if new evidences arise. Some claims have to be taken in the first place to the court of appeal. For exemple cases where the amount of the claim is more than ten millions HUF app. USD 34.000,00. If the debtor does not carry out the judgment an other court proceedings have to be started for the execution of the same. (WARRANT OF EXECUTION).
The legislation applying to a debtor unable to meet his liabilities is provided in the XLIX Act of 1991. In accordance with this Act there are two different procedures for solving such a situation. There are the bankruptcy proceedings, the liquidation and the closing of the firm. Their application depends on circumstances of thee insolvency. The main aim of this act is the defence of the debtor's interests. A firm is considered insolvent by this Act if it cannot off its debt in sixty days after the days of maturity of it or if the execution was unsuccessful. The bankruptcy proceedings is started by the debtor's notification. As a result the debtor is guaranteed ninety days of payment moratorium. If this procedure is unsuccessful it can be solved by liquidation. Liquidation can be started on the request of the creditor, the debtor and in case of successful bankruptcy proceedings by the order of the court. The court declares the debtor insolvent if the above mentioned conditions are existing and nominates a liquidator. The creditors have forty days from the court's order to announce their claim to the liquidator. The debtor and the creditors can reach a compromise which has to be accepted by the court. If there is no way for compromise the liquidator registers the firm debts and makes an inventory of properties. Then he collects the claims of the debtor and sells all of its property. Then the final balance prepared by the liquidator. He has to send it to the creditors within thirty days. The creditors have thirty days to raise any objections against the final balance. Then the final balance is accepted by the court. The debtor's assets are distributed in the following order: costs of the liquidation procedure, creditors secured by lie or caution, allowances and life annuities, claims based on bonds, claims of the Social Security and taxes, others. As consequences of this procedure the firm in question is closed down.
In accordance with the regulations of thee Hungarian Civil Code interest is due in contractual relationships. In contractual relationships between private persons interest is due only if so stipulated in the contract. The extent of the interest is determined in every year by the Finances Act. It is 11% p.a. in 2001. Only legal regulations or the agreement of the parties can stipulate lower interest.
In accordance with the regulations of the Hungarian Civil Code, the civil claims generally become prescribed in five years. Complementary claims closely connected with main claims become prescribed together with main claims. Parties can agree in shorter period for limitation. All of these agreements have to be made in writing. Prescribtion period has to be counted from the date of the maturation of the claim in question. Prescribed claims cannot be enforced by court proceedings.
In accordance with the regulations of the Hungarian Civil Code the seller has to give over title to buyer. The seller can reserve the title for himself only by making a contract, in writing and only for the priod while the buyer pays off the total price. During this period the buyer cannot sell or encumber the object of the contract. Nevertheless, this rule does not have effect on the rights acquired bona fide and for counter-value by a third party.
The Hungarian legal rules regarding foreign exchange will be liberalized in accordance with the relevant regulations of the European Union by the beginning of 2002.
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Report by: Mr. Yechiel Yaron, Attorney at Law and Notary Law
Office of Yaron International Credit Management Ltd, Tel Aviv, Israel
The volume of collection work done in Israel is approximately percent of overdue debts. Collection work is handled by lawyers and professional collection agencies, but almost entirely by attorneys. Pending legislation will severely curtail representation of creditors by collection agencies. Collection work is done on all kinds of consumer and commercial accounts. Collection Licensing Requirements applicable to collection lawyers or agents. Most collection work is done by licensed attorneys or their personnel. Collection agencies do not presently require a license, but they are not allowed to implement collection procedures in court or at the office of the execution of judgment. This can be done only through a lawyer. For this reason, it may be necessary to handle collections through a lawyer's agency like ours. General Procedures and Steps used by lay collection agencies in a typical collection effort. Collection agencies send letters and subsequently apply directly to the debtor to collect the money. They are not entitled (as lawyers are) to act on behalf of their clients through court or the execution office. Only the bearer or endorsee of a check or promissory note can apply to the execution office directly. The steps a lawyer might take in a typical collection effort. Lawyer usually sends a written demand for payment with a notice to the debtor that the creditor will file legal action if the debt is not paid. Upon failure to pay the debt, the client files an action in court, or in case of a check or promissory note, may apply directly to the execution office (or court).
Lay collection agencies charge between 30 percent and 60 percent of the amount paid by the debtor.
Lawyer's fees are arranged by agreement with the client as follows: Minimal payment for claim letter and a percentage (10-12%) of the amount actually collected from the debtor, plus lawyer's fees (15-20%) as determined by the court or execution office (in case of legal action); Retainer for handling claim(s); and Advance payment, irrespective of the success in collection. Can any collection charge be passed on to the debtor? No. But we try and sometimes we succeed. Interest - May interest be added to unpaid bills? If so, what is the legal maximum rate? Yes. In court, interest of 4 percent to 8 percent plus linkage to the Cost of Living Index, on shekels. On foreign currency (collection for foreign creditor) interest is per agreement. Under Israeli law, it is percent per annum. Client-Forwarder-Forwardee Relationships Client relationship - Is there anything special to note about the relationship between collection agents and their clients? For example, if an account is worked by a collector and then withdrawn by the client before actual payments start, has the collector earned any fee or commission if the debtor eventually pays part or all of the debt? Commission depends on the agreement between the parties. Under rules of the Israel Bar Association, an attorney must have written authorization from the creditor, and not merely the agency. Forwarded claims and accounts - What information is needed when you receive an account for collection from outside your country? Full details regarding the claim and of the debtor are needed. In the case of a company (Israeli corporation), details regarding
directors and shareholders, documents constituting the basis for the action, exchange of correspondence having accounting significance, receipts, debit notes, check or bill are required.
Skiptracing - Collection attorneys are associated with investigation and information agencies and are knowledgeable about government offices through which it is possible to receive information about debtors. For every investigation, examination and/or other service there is a specific charge or fee - subject to the client's requirements. Uncollectable claims - Uncollectable claims are subject to the client's instructions. If an action is filed at the execution office (after obtaining judgment, or in the case of checks and promissory notes), the file remains open as long as there is a possibility to collect the debt. In the interim, interest and linkage on the principal accumulate. Prior to legal action, the client may request that the lawyer close the file and cease legal proceedings. Dishonored checks - In the case of checks, collection is less complicated. They are submitted directly by the lawyer to the execution office at the court and debtor property and moneys can be liened and seized. In certain cases, a warrant for arrest may be issued. Collection agencies that do not succeed in collecting the debt without execution proceedings turn to a lawyer's office. In Israel, it is a crime to issue checks without sufficient funds.
What information is needed to file legal action? Documents creating or confirming the cause of the claim (such as contract, check, bill, invoices etc.) and those relevant to the factual background for the debt and of refusal to pay are required. When can a claim be made an object of legal collection? Is there a specified statute of limitations period? Are there any preliminary steps that must be taken? If so, what? Any debt arriving from breach of commitment to pay and/or from damages constitutes the basis for legal action, provided that less than seven years have elapsed since the date when the cause of action was created.
An exception occurs if there was no possibility to know about the cause of the action, i.e. the debtor has "vanished", or if it was impossible to file action - for political or legal reasons - in the other country within seven years. In such events, the statute of limitations period is extended according to the circumstances. There are no preliminary procedures for filing legal action, unless so stipulated in advance by agreement between the parties.
There are three courts in Israel for money claims: Magistrate's Court - hears claims up to NIS 1,000,000 (approx. US$330,000). Due to added interest and linkage prior to payment of a judgment, the total sum may reach twice that amount. District Court - hears all claims beyond the competence of the lower court and appeals judgments of the Magistrate's Court. Supreme Court - where appeals of judgments of the District Court are heard. (There are also: High Court of Justice, Labor Court, Rabbinical Court and Military Tribunals). A plaintiff must appear and testify in court, if this is vital to the action, unless it is agreed between the attorneys for both parties that an affidavit will suffice, or if it is agreed to depose the plaintiff or a witness at the Israeli Consulate in the plaintiff's country. Default summons and default judgment - What constitutes a valid summons? If a debtor does not show up in court, can a default judgment be secured? After the court has authorized (in accordance with Israeli law) service of summons and complaint, the plaintiff must provide confirmation of personal service which must be proven by the signature of the defendant or any person qualified to receive documents on his behalf, for instance a spouse living with him and/or a company (corporation) secretary, or by registered mail. In the event that the defendant does not submit answer by the date stated in the summons (30 days in Israel; 60 days to 90 days for a defendant abroad), a valid default judgment is issued against him which becomes final, if not canceled or successfully appealed. It is possible to collect such a judgment through the execution office.
Personal service by court messenger or delivery by registered mail sent directly from the court of the execution office, or personal service by the lawyer to the plaintiff (or the defendant).
One must present the judgment - and/or check or promissory notes - to court as aforementioned, together with official documents, and must pay an additional fee of 1.5 percent of the judgment to the execution office, and then initiate legal proceedings to collect the debt.
Judgments in Israel are recorded and remain on the file for 15 years. In special circumstances they remain even longer.
There is no limitation on transfer of debt collection moneys in foreign currency, out of the country. However, authorization is required - and usually granted - from the Bank of Israel for transfer of collection funds abroad in the foreign currency.
Remittance of the debt to a lawyer is per agreement, in two ways:
- Direct remittance to the lawyer (by check or cash) or bank transfer in local currency, which is converted into foreign currency and sent to the client; and
Direct transfer by the debtor to the client, i.e. the creditor, through foreign currency check or interbank transfer. The collection agency or the client is responsible for payment of commissions to a lawyer or collection agency. Agents or attorneys required to maintain a separate clients' trust account into which all sums collected for the client are deposited.
There are laws governing the reservation of rights on patents and inventions, trade marks and models, and copyrights.
Owing to the country's small surface area and the lack of natural resources, Israel is mainly known for its science-based industry, its electronics, diamond, fertilizer, chemical industries, as well as for its modern agriculture and achievements in the medical field. Israel grants considerable economic benefits to foreign investors. Israel has preferential trade agreements with the United States and the E.C. countries which also grant privileges to foreign investors.
We would like to make a few suggestions to foreign members or partners, in order to make our debt collection work quicker and more efficiently. Firstly, advise your clients, the creditors, to initiate legal action if amicable collection efforts do not succeed within two/three months. Make sure that clients receive from their customers all details on their business/financial situation including details of their customer's bank or a declaration by their customer that their business is not insolvent.
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Report by: Mr. Alain Lorang, Law Office Lorang & Associés, Luxembourg
Historically Luxembourg's commercial law is of French origin. It has been also deeply influence by Belgian commercial law and has many similarities with the law of both countries. A significant issue for the debt collection industry is the legal value of invoices. The Luxembourg legal system treats differently traders and non-traders in that respect.
The commercial court defines as traders those who engage in commercial transactions as their customary activity (article 1, commercial code). The Luxembourg code of commerce states in the article 109 that an invoice sent to a trader which is not promptly contested will considered as having been accepted. Generally an invoice is considered accepted if the trader does not react within two months after reception. The rule of acceptance of invoices does not apply to persons who are not traders.
1) Interest
Conventional interest may be added to inpaid bills if the principle of interest and its rate have been accepted by the debtor. Special interest and penalties mentioned in an invoice but not accepted by the debtor are not upheld by the Luxembourg courts. Legal interests (at the present time 7.5% p.a) may be added from the date of the writ of summons until complete payment of the debt. The law also permits the creditors to claim the legal interest from the day of sending a summons by registered mail to the debtor.
1. Collection charge
In Luxembourg as in Belgium andd French law, court fees are paid by the party who loses the case, with the exception of lawyers' fees. Part of the lawyer's fees may be paid by the debtor if the judge finds it inequitable that the creditor pays all the costs. Authorization to have a part of the lawyer's fees paid by the debtor must be requested by the lawyer to the judge of the district court. Jurisdiction in commercial matters is a special jurisdiction. It is exercized by the court of ordinary jurisdiction, the district court (Tribunal d'Arrondissement). Specialized divisions of this court have been created for commercial cases. Mino commercial cases (involving less than 200.000 LUF) will be heard by a lower court called the Justice of Peace (Justice de Paix). A claim before the district court involves a longer procedure. To avoir this problem summary proceedings have been instituted in a district court to allow creditors to obtain judgment in cases when the debtor can ot seriously contest the debt.
What information needed to file legal action?
1) The address and profession of the debtor
2) The indication of th claim and The legal basis of the judicial action
What are the procedure for process serving? The most important documents of the procedures such as the writ of summons or the judgment are served to the other party by a bailiff. Documents of procedure exchange between lawyers are normally communicated by post or fax.
A statury lien is provided for certain matters by the Code Civil but laws on consumer protection are fairly restrictive. Retention of title clauses state taht the salesman remains the owner of the subject of the contract until the goods have been fully paid up. The disadvantage is that the sailer is exposed to all the risks, hence the necessity of a second clause transfering these to the contracting partner.
For judgments which are not coverd by the Brussels Convention (applicable to E.E.C. members) the judge, before granting recognition or enforcement, must assertain that:
In Luxembourg since May 1996 legal matters up to LUX 400.000 (approximately DM 19.000) before only LUX 200.000 are carried out by lay magistrates.
Above mentioned information is provided by:
LORANG-ASSOCIES
Tel: 00352.44.26.15
Fax: 00352.44.22.92
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Short report by: Attorney at law, Mr. Jens Lind, Lindorff AS, Oslo, Norway
The Creditor can take overdue interest the date account was due. In the case of individuals the rate of interest is from 1 July 2007: 11,5 %. (10,5% first halfyear 2007) A commercial account without agreement the rate is also 11,5 %. If you have an agreement, then higher interest may be charged
Invoices: 3 Years. Interest: 3 Years. Can be renewed by judgment or promissory note: With judgement 10 Years. Loans and promissory notes10 years, but interest 3 years.
Maximum 5 years. With payment agreement running for 4 years or less - 12 months longer than original agreement. If the goods are to be sold (forinstance stock), sellers lien is not allowed. Leasingagreements and sellers lien regarding registered motorvehicles, must be registered in the Register of Mortgaged Movable Properties.
Mortgage must be registered in the Register of Mortgaged Movable Properties.
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Report by: Mr. Peter Sint, LIC NEDERLAND INTERNATIONAL GROEP B.V., Bussum, The Netherlands
It is normal business practice in the Netherlands for a seller of (zaken) goods to retain title to the goods until they have been paid for. Retention is effected by including a retention of title clause in the specific conditions of sale or, where relevant, in the general conditions of sale registered at the local chamber of commerce. Such a reservation of title (eigendomsvoorbehoud) is not affected by the bankruptcy of the purchaser; goods supplied under retention of title do not form parts of the bankrupt's estate. Purchasers are not prevented from processing goods that have been supplied under retention of title. The same applies in most cases in respect of selling goods. However, where such goods have been incorporated into other products, or been processed in some way , the unpaid seller loses his title. In addition, title passes on the sale of the goods to a bona fide third-party purchaser. Thus, the title to goods sold before they are paid for ceases to be vested in the supplier, notwithstanding the existence of a retention of clause in the supplier's conditions of sale.
The most important types of security available in the Netherlands are :
The information recorded in the registry is available for inspection by the public or other creditors of the pledgor. The reason for interest and to prove the date at wich the pledge has been created. In the new Dutch Civil Code, substantially revised as of 1 January 1992, non-prossessory pledge is created to replace the now forbidden fiduciary ownership. Slightly different is the way a regisered claim (vordering op naam) is pledged. In general, a draft of pledge over a claim on a third party is created by means of a deed of pledge and notification thereof to the third party debtor who then must pay directly to the secured party (supplier). However, a pledge can be created without notification of the third party debtor, but this will leave the risk that the third party will pay the customer but the customer may not remit the funds to the secured suplier. In such a case the rules in respect of a non-prossessory pledge apply accordingly. On default, the rights of a pledgee are similar to those of a mortgage.
Liens arise where a creditor retains assets in his possession until the amounts due to him have been paid. Liens are usually encourtered in the transport industry, where the shipper has the security of the goods being transported, and in banking, where any assets (usually bonds, shares or other securities) lodged by customer are secured by way of lien for amounts due to the bank Debt recovery. If attempts to obtain payment for outstanding debt are unsuccessful, it is usual to place the matter into the hands of a debt collection agency, particularly where the amounts involved are small and can be dealt with in a cantonal court (kantongerecht) whose limit of juridiction is 5,000 guilders (about Ecu 2,300). Alternativly, the creditor can enter into judicial proceedings himself. The statutory rate for pre-judgement interest was 8 per cent in 1995 and is gazetted annualy.
For small claims, up to 2,500 guilders (about Ecu 1,150), there is a simplified procedure whereby, on successful application by the creditor to the local court, a provisional notice of demand is sent to the debtor who then has 14 days to respond. If no response is made, the court issues an order to pay (betalingsbevel). Failure to make payment within 14 days thereafter will result in the court levying execution. Where the debtor responds to the provisional notice of demand, the court will arrange a hearing. The judge may give a ruling at this hearing, which cannot be challenged, or, alternatively, call for more evidence. Larger claims require a full hearing and those above 5,000 guilders must be heard in the first instance in the regional court (arrondissementsrechtbank). The debtor will be issued a writ of summons (dagvaarding) to attend the court. If the judge decides in favour of the creditor, the debtor must pay the judgment debt within 14 days, failing which execution will be levied. Appeal against a primary regional court decision can be made to an appeal court (gerechtshof). Judicial procedures can be very time consuming (especially where technical issues are involved), often lasting about 18 months from beginning to end. If a case is demonstrably urgent there are summary proceedings available known as kort geding. The proceedings are more informal and do not permit any written submissions beyond what evidence the president of the regional court feels he may require to render his decision, a provisional order similar to injunctive relief. There are two levels of appeal from this decision and there is the possibility of damages being awarded against a successful plaintiff who has proceeded to execution but whose award is overturned on appeal.
There are no non-judicial debt collection procedures in the Netherlands even for dishonoured bills of exchange. While a bailiff can be employed to assist in such a case, he will require a court order to institute execution procedures (even the simple posting of notice referred to below).
If a court order to pay a debt is ignored, the court will levy execution. In this case, a bailiff (having previously served written notice on the debtor that he will collect the debt on a specific day) will seize the debtor's assets and proceed with their sale at public auction. The realisation proceeds are then applied to the liquidation of the debt. Assets in the possession of a third party may be seized by way of a garnishee order.
Where a creditor can show that there is a strong likelihood that the debtor may dispoce of assets, or that the debtors assets may otherwise be eroded, he may be able to obtain injunctive relief. If an injunction is granted, the assets of the debtor are effectively frozen and may not be disposed of without the authority of the court. If the debtor is subsequently able to contest the debt successfully and the injunction is lifted, the court may award damages against the creditor.
Until very recently, Portugal was one of the few countries in the European Community in which there was no genuinely speedy way to get a judgement.
However, innovations have been introduced by the Decree-Law N· 404/93 of December 10th, 1996. This decree-law foresees to obtain in a simple and quick way, an executory title, which is indispensable to commence executory proceedings when the payment of money sums arising out of a contract is concerned.
This procedure is nevertheless limited to small debts up to ESC 250.000 (approximately DM 2.500.-)
The application for the order for payment is made by the claimant, giving details of the debt and supported by justifying documents which should be attached to the application. The application is made to the terriorially competent Court and the Court Official (clerk) is given competence to serve the request for injunction on the debtor, by registered mail. If no opposition is lodged within the requisite period (7 days) the Court Official may
apply the executory formula. It then may be enforced in the same way as a judgment after a contested hearing.
The opposition of the „Executory formula" , not being a jurisdictional act, allows nevertheless the debtor to defend himself in a future enforcement proceedings, using the same grounds he could use if he had defended himself in a declaratory action.
It is thus, a non jurisdictional stage, and thus inevitably quicker, which however doesn't allow the diminishing of the partie's guarantees.
In fact, if an opposition is lodged, or if the Court official doesn't succeed serving the request for injunction on the debtor, the clerk will bring the proceeding to the Judge, who will summon both parties to appear before the court.
The executory formula may be refused by the Court Official if the request doesn't come within the injunction's aims or if there is a failure to comply with the formal requirements of it. Also in this case, the claimant will be given the right to claim against this refusal to the judge.
In an effort of desbureaucratization, the access to justice is eased by the payment of the Court costs through an appropriated stamp and the approval of appropriated formularies to make the request of an injunction has been admitted.
The legal costs have been reduced, which is understandable due to the shorter time the proceedings take and to the almost inexistance of judicial acts.
It is not obligatory the representation of the parties by a lawyer. If a lawyer is appointed a power of attorney will be necessary.
As to the interests the parties may stipulate as to the rate of interests to be paid but this rate cannot exceed the legal rate plus 3% or 5% whether there is a real guarantee or not,
If no interest is agreed, then, the legal interest fixed by law applies. At the present moment the legal interest fixed by the Civil Code is 10% and by the Commercial Code is 15% applied to credits hold by commercial firms or individuals.
Above mentioned information is provided by:
Law Office Luis Gallego, Catarina Gallego, Filipa Gallego
Tel: 00351. 1. 387.3942 , 387.3283, 387.2646
Fax: 00351. 1.387.2349
As in other countries, the first step in any case of debt recovery, prior to intend legal proceedings is to give the client a formal payment notification, stipulating the delay payment has to be done. This reminder for payment might be sent by the seller himsel either through registered mail or notary public. However, before to deliver some goods and specially when it is question of international transactions, it is most important to have some information on different ways of SECURITY and LEGAL ACTION, when purchaser defaults payment. However, these suggestions have to be considered as informative and not as advisory. Therefore, if you need assistance in SPAIN, just contact a professional office including LIC members
1. Real Securities
Mortgage: Consisting in two categories: Chattel Mortgage or Real Estate Mortgage, which we shortly describe as follows:
Chattel Mortgage: This form of mortgage is applied to some goods such as: automobiles, industrial machinery, industrial or intellectual property, ariplanes, business establishments, which also refers to the right to rent the permises and business name, including other intellectual property. This type of mortgage has to be formally registered in a Special Register and includes that debtor is still the owner of the goods in a Special Registry
Real State Mortgage: This kind of mortgage is only valid if it is registered in the Real Estate Propertry .The debtor keeps in his possession the real estate and will only change the proprietor following legal proceedings and that debtor does'nt comply with his obligations by paying the overdue account
Pledge: This type of security is applied exclusively to movable goods . There are two categories of pledge
which are as follows:
a) Physical transfer of ownership: There is a transfer of propriety of movable goods from debtor or a third party to the creditor. The creditor can keep the movable goods until debtor paid the whole amount of the claim including interests. If debtor does'nt pay the overdue account, creditor may take legal proceedings in order to claim the sale of the movable goods. This kind of pledge has not to be formalised in a public. Deed nor has to be registered in any kind of special Registry, but the movable goods have to be sent to creditor, who otherwise will have no right on these goods
b) Without physical transfer of ownership: It is only applied in limited cases and it is regulated in a law of 1954.
2. Personal Securities
Art, 1822 of Spanish Civil Code regulates personal guarantees
3. Alternative Forms of Security
Penalty clause: Both parties may agree in the contract of sale that a certain amount of money has to be paid by the client if their is a breach of contract.
Default interests: Interests are due from the date when the account has to be paid. The legal interest rate is yearly established by the General Budget Law, providing the parties have not agreed a different rate.
Certified cheque: It is question of a cheque signed by the client's Bank, which guarantees to cover the amount specified on the cheque.
Letters of credit: In Spain this way of handling is used mostly for international transactions.
Parties can establish in a sales contract that the delivered goods remain propriety of purchaser up to payment of the overdue account. The client becomes owner of the goods, after the whole invoice has been paid.
Certain movable goods with regard to hire purchase are subject to a possibility of establishing some guarantees on behalf of the seller, which are as follows:
Should the client don't pay two instalments or the last istallment, the supplier can request payment of the outstanding amount through Notary Public . In the case of termination of contract the buyer has to give back to the supplier the delivered goods and the supplier has to refund part of price paid, less 10% of the sales price for reduction in value, if the supplier deems it necessary. In order this procedure is applicable the contract of sale must be established in an official form and legalised by the General Directorate of Registration and the Public Notary. The contract must also be registered in a special Registry. Supplier may prefer to make use of normal legal proceedings if desired.
It is important to know, that when it is question of the recovery of claim , it must be proven the plaintiff's proprietorship, that the goods object of this legal action are still in the defendant's propriety. Therefore, if this cannot exactly be proven legal action has no chances to be achieved.
a) Categories
· Verbal Judgment: This is used for cases involving claims of less than Ptas 80.000 (approximatelyECU 350.-) this is suggested for small claims litigation. It begins with a petition to the judge. If the judge after examining the demand , accepts it as satisfactory, he will summon both parties. It is a very simple trial, completed within a very short time, conducted mostly under oral proceedings and can be carried out without a lawyer.
· Declaratory Judgment: This procedure is applied for cases involving claims from Ptas 80.000 (approximately DM 1.000) to Ptas 800.000 (approximately DM 10.000) . Both parties need to instruct a lawyer and a court representative (Procurador). The demand is substantiated by a claim supported by substantial documents. The judge will consider the case and will summon both parties at which hearing defendant and plaintiff have to introduce and give ample evidenceof their requests and defence.
· Judgmen for less than a limited amount (Juicio de menor cuantia): This is applied for claims between Ptas 800.000 and Ptas 1.600.000 (approximately DM 10.000 and DM 200. 000) . A lawyer has always to be instructed, as well as a special court representative (Procurador).
· Judgment for amounts superiors to Ptas 160.000.000 (app. DM 200.000): It is a rather a lengthy procedure, which is conducted in written and in various steps. A lawyer and a special court representative (Procurador) have always to be instructed.
· Enforcement of the judgment: The last step of a declaratory judgment is the execution by the judicial bodies
If appeal is rejected and debtor does'nt pay the overdue account, the enforcement of the judgment is conducted. Goods may be seized and auctioned.
· Injuction to prevent waste o f assets by debtor: It is question of a special procedure aiming to guarantee the result of a normal declaratory judgment. The debt must have been stipulated in a document and the judicial body will check whether the debtor's assets might be wasted by debtor. If this is proven, the assets will be seazed.
This procedure is applied when the plaintiff has a document such as a bill of exchange, public deed or stockbroker document, or if there is a judicial recognizance of debt (debtor acknowledged the debt before the judge). Claims has to be superior to Ptas 50.000 (apprpximately DM 600.-). This procedure is quicker than a declaratory one and one of the advantages is that the execution can immediately be started. According to the kind of document the debt is recognized there are some executory ruling to be observed. This specially involves debts with regard to bills of exchange.
A matter of litigation may also be solved by arbitration than by taking legal proceedings (his has to be between both parties). The litigation is usually settled by an arbitrator, who has to submit his decision not later than within 6 months time. The decision has to be established in a document legalised by Notary Public. However, if the matter of litigation is submitted to an arbitrator it excludes any other to apply the usual legal proceedings.
Many foreign companies which maintain trade relations with Spain often do not consider the risks involved in being unaware of Spanish laws in general and Spanish Bill of Exchange Acts in particular. It is commonly known that payment for a large percentage of business transactions is effected by bills of exchange issued against Spanish clients. Corresponding to different types of contracts of sale, the maturity dates and currencies of such bills of exchange vary.
In most cases, foreign suppliers rely on being sufficiently secured abroad by these bills of exchange with respect to the payment of the purchase price. They believe that on the basis of these bills of exchange they can obtain an enforceable instrument in legal proceedings which are related to a bill of exchange within a very short period of time in order to be able to execute against the property of the client in case the bill of exchange is not honoured when it falls due. I regret to say that in those cases where a bill of exchange issued abroad does not fulfil all legal requirements in Spain, these views on the safety of their bill of exchange held by foreign suppliers are incorrect and lead to unpleasant surprises and, frequently, also to substantial financial losses.
The precondition for the validity of a bill of exchange in Spain - in addition, of course, to the adherence to any requirements provided by law in respect of the contents and form of a bill of exchange - is the payment of tax in Spain by the first payee of the bill of exchange issued abroad.
Supplementary taxation is effected by the bill of exchange being provided with the corresponding bill stamps. Only then will a bill of exchange be enforceable following protest in case it is not honoured in due time.
In most cases the supplementary payment of tax is omitted, as in practice the presentation of a bill of exchange is often carried out as follows: The foreign supplier delivers the corresponding bill of exchange with complete documentation to a bank in Germany for presentation to the client. If the foreign supplier is unaware of the taxation of the bill of exchange in Spain, which is provided by law and - in addition to protest - is an indispensable prerequisite for enforceability, he or she will not inform the German bank accordingly. The bank on its part will also forward the bill of exchange to a correspondent bank in Spain without any instruction to this effect. In this case the Spanish bank will not enter a protest without any instructions to this effect. Neither will it pay the supplementary tax on the bill of exchange, as - having not been instructed to do so - it does not know whom to invoice the costs. For this reason, most bills of exchange remain untaxed initially. Only if the bill of exchange is not honoured when it falls due, tax is often paid subsequently - before bill protest.
Unfortunately, it occurs quite often in such cases that, upon the supplementary payment of tax, the bank employee enters a date later than the due date of the bill of exchange. Such a mistake is extremely serious as the law provides for supplementary payment of tax by the first holder of a bill of exchange in Spain. However, it can hardly be substantiated afterwards that the bank only received the bill of exchange one day subsequent to its due date and not before.
Banks proceed in this way in order to save taxes - also for their customers - in those cases in which a bill of exchange is honoured in due time. Otherwise payment of tax is effected as aforesaid to enable bill protest.
As regards any subsequent court proceedings in which the execution of a bill of exchange on which - belatedly- supplementary tax has been paid is to be enforced, the foreign supplier will lose his or her case related to the bill if the other party is able to assert that the tax has been paid subsequent to the due date or even that it has not been paid at all.
In these cases, Spanish jurisdiction is extremely stringent. In addition, the court may interpret belated payment of tax as a wilful evasion of Spanish laws.
To secure his or her rights, it is therefore advisable for the foreign supplier to provide written instructions to the bank that supplementary tax be paid on the bill of exchange by the first payee of the bill in Spain and that if the payment date of the accepted bill is not observed protest be entered.
The foreign supplier should always take into account that normal court proceedings in Spain may take three to four years (in 3 instances), while the foreign creditor may not levy execution against the debtor's property as long as the proceedings are pending. Legal proceedings related to a bill of exchange, however, (they may be conducted if tax has been paid on the valid and accepted bill of exchange and the bill of exchange has been protested after due date) takes 4 to 6 months in the first instance and provides the possibility of levying execution on the debtor's property immediately.
It is quite obvious: It is worth paying tax on the bill of exchange.
Formal Requirements of Bills of Exchange
Section 444 of the German Commercial Code in connection with the ordinance of 31 July 1975 provides that bills of exchange must contain the following information to obtain effectiveness in court:
1. Place and date of issue;
2.Maturity;
3.Name and address of the payee of the bill;
4.Amount due;
5.The way in which the issuer has received consideration from the payee of the bill"valor recibido" = bill proceeds received, "valor en cuenta"= credit promised, "valor entendido" = consideration promised;
6. Place of payment
7. Name and address of the drawer of the bill;
8 .Acceptance in acceptor's own handwriting. In the event of acceptance by an authorised person, such authorisation must be indicated (p.o. = por orden).
Pursuant to section 1429 of the Spanish Code of Civil Procedure the following is entitled to immediate enforceability (by proceedings restricted to documentary evidence): "Bills of exchange without the necessity of their being recognised judicially with respect to the acceptor, if he or she has not pleaded the defence of forgery of signature following protest on grounds of non-payment. Notwithstanding the premises, the defence of forgery of signature by the acceptor shall not prevent the writ of execution if the acceptance has been rendered by a legal representative or the signature of the acceptor has been legitimated, although such defence may be pleaded (again) in any (subsequent) court proceedings."
Subject to the same reservations the writ of execution of the bill of exchange vis-à-vis any guarantor or endorser is possible if he or she has received notification on the fact of protest due to non-payment by notarial service.
BETRACHTUNG ÜBER DIE EINLÖSUNG VON AUSLÄNDISCHEN WECHSELN IN SPANIEN
Viele ausländische Firmen, die mit Spanien in Handelsbeziehungen stehen, beachten häufig nicht die Gefahren, die die Unkenntnis der spanischen Gesetze im allgemeinen und im besonderen der spanischen Wechselgesetze mit sich bringt. Es ist allgemein bekannt, daß bei einem großen Prozentsatz der wirtschaftlichen Transaktionen die Bezahlung durch Wechsel erfolgt, die gegen spanische Kunden ausgestellt wurden. Entsprechend den unterschiedlichen Kaufverträgen variieren Fälligkeitsdaten und Währungen dieser Wechsel.
Die ausländischen Lieferanten vertrauen dann in den meisten darauf, daß sie mittels dieser Wechsel im Ausland ausreichend abgesichert sind hinsichtlich der Bezahlung des Kaufpreises. Sie glauben mit diesen Wechseln im Wechselprozeß in kürzester Zeit einen Titel zu bekommen, um, für den Fall, daß der Wechsel zum Fälligkeitsdatum nicht eingelöst wird, in das Vermögen des Kunden vollstrecken zu können. In den Fällen in denen ein im Ausland ausgestellter Wechsel nicht allen gesetzlichen Anforderungen Spaniens genügt, sind leider dieser vor den ausländischen Lieferanten vertretenen Ansichten über die Sicherheit ihres Wechsels unzutreffend und führen zu unangenehmen Überraschungen und vielfach auch zu erheblichen finanziellen Verlusten.
Voraussetzung für die Gültigkeit eines Wechsels in Spanien ist -selbstverständlich neben der Einhaltung aller gesetzlich vorgeschriebenen Erfordernisse hinsichtlich Inhalt und Form des Wechsels - die vom Gesetz vorgeschriebene Versteuerung des im Ausland ausgestellten Wechsels in Spanien durch den ersten Wechselnehmer.
Die Nachversteuerung erfolgt dadurch daß der Wechsel mit den entsprechenden Wechselstuermarken versehen wird. Nur dann ist er für den Fall, daß er nicht termingerecht eingelöst wird, nach dem Protest vollstreckbar.
Diese Nachversteuerung wird in den meisten Fällen versäumt, denn in der Praxis läuft die Präsentation des Wechsels häufig folgendermaßen ab: Der ausländische Lieferant übergibt den entsprechenden Wechsel mit den vollständigen Unterlagen einer Bank in Deutschland zur Vorlage bei dem Kunden. Wenn dem ausländischen Lieferanten die gesetzlich vorgeschriebene Versteuerung des Wechsels in S p a n i e n - neben dem Wechselprotest - unerläßliche Voraussetzung für die Vollstreckbarkeit - unbekannt ist, wir er auch der Bank in Deutschland keinen entsprechenden Hinweis geben. Die Bank ihrerseits wird den Wechsel ebenfalls ohne entsprechende Anweisung an eine Korrespondenzbank in Spanien weitergeben. In diesem Fall wird die spanische Bank ohne entsprechende Instruktionen keinen Wechselprotest erheben. Auch wird sie den Wechsel nicht nachversteuern, da sie - ohne Anweisung - nicht wüßte, wem sie die Kosten in Rechnung zu stellen hätte. Aus diesen Gründen bleiben die meisten Wechsel zunächst unversteuert. Erst für den Fall, daß der Wechsel nicht am Fälligkeitstag eingelöst wird, wird häufig die Versteuerung - noch vor dem Wechselprotest - nachgeholt.
Unglücklicherweise passiert es in solchen Fällen jedoch nicht selten, daß von den Bankangestellten bei der Nachverstuerung ein Datum, das nach dem Fälligkeitsdatum des Wechsels liegt, eingetragen wird. Ein derartiger Irrtum ist außerordentlich schwerwiegend, weil das Gesetz vorsieht, daß der Wechsel vom ersten Wechselinhaber in Spanien nachzuversteuern ist. Es ist aber wohl später kaum glaubhaft zu machen, daß der Wechsel erst einen Tag nach seiner Fälligkeit und nicht bereits vorher bei der Bank eingegangen ist.
Die Banken verfahren auf diese Art und Weise, um - auch für die Kunden - die Steuer zu sparen in den Fällen, in denen der Wechsel fristgemäß eingelöst wird. Anderenfalls erfolgt, sonst, wie oben ausgeführt, die Versteuerung um den Wechselprotest zu ermöglichen.
In einem eventuellen späteren Gerichtsverfahren, in dem die Vollstreckung des -verspätet nachversteuerten Wechsels durchgesetzt werden soll, würde der ausländische Lieferant den Wechselprozeß verlieren, wenn die Gegenseite geltend machen kann, daß die Versteuerung nach dem Fälligkeitsdatum erfolgte oder sogar ganz versäumt wurde.
In diesen Fällen ist die spanische Rechtsprechung ausserordentlich streng. Darüberhinaus kann das Gericht die verspätete Versteuerung noch als vorsätzliche Umgehung des spanischen Gesetzes auslegen.
Es ist daher für den ausländischen Lieferanten empfehlenswert, für die Absicherung seiner Rechte die Bank schriftlich anzuweisen, daß der Wechsel vom ersten Wechselnehmer in Spanien nachversteuert wird und daß wenn das Zahlungsdatum des akzeptierten Wechsels nicht eingehalten wird - der Protest durchzuführen ist.
Der ausländische Lieferant sollte immer bedenken, daß ein normales gerichtliches Verfahrens in Spanien 3 bis 4 Jahre (in 3 Instanzen) dauern kann, ohne daß für den ausländischen Gläubiger die Möglichkeit besteht, das Vermögen des Schuldners pfänden zu können während des laufenden Verfahrens. Ein Wechselprotest hingegen (es kann durchgeführt werden, wenn der gültige und akzeptierte Wechsel versteuert und nach dem Fälligkeitsdatum protestiert wurde) dauert in der ersten Instanz 4 bis 6 Monate und bietet sofort die Möglichkeit, das Vermögen des Schuldners zu pfänden.
Es ist wohl offensichtlich: Es lohnt sich, den Wechsel zu versteuern.
Formelle Erfordernisse von Wechseln
Artikel 444 des Handelsgesetzbuches in Verbindung mit der Verordnung vom 31. Juli 1975 bestimmt, daß Wechsel folgende Angaben beinhalten müssen, um vor Gericht wirksam zu sein: