Last March 2nd, the Legislative Assembly approved in second debate bill 21.364 called “Reform of Article 460 of Law 3.284, Commerce Code, dated April 30, 1964, Law for the Digitalization of Judicial Collection“. This bill pretends to modify Article 460 of the Commerce Code in order to give to the electronic invoice the character of an enforceable title and in this way to be able to collect it by a judicial collection process, this process consists of the possibility of obtaining the collection of monetary, liquid and enforceable obligations contained in public or private documents.

In order to improve the country’s tributary system, since 2018 it became mandatory for taxpayers to issue electronic invoices. The disadvantage of this figure is that for tributary effects they do not require to be signed by the debtor. The Commercial Code in its article 460 establishes that in order for electronic invoices to become an enforceable title, they must be signed by the debtor, by his agent or by his representative. For this reason, in the last years the electronic invoice by itself does not constitute a valid document to file a judicial collection process, since they are issued but not signed by the debtor.

Important considerations that changed with the amendment of article 460 of the Commercial Code are the following:

i. The invoice, regardless of being physical or electronic, is given the characteristic of an enforceable title.
ii. The requirements for it to be an enforceable title and to be able to present a judicial collection process are the payment of tax stamps and the signature of the buyer or his duly authorized agent, which must be in physical form if it is a physical invoice or digital in the case of an electronic invoice.

The last requirement brings with it negative practical effects on the effectiveness of the reform for those who do not have a digital signature, since as an indispensable requirement it is established that for the electronic invoice to be valid, it must be signed by the buyer or his agent with a digital signature, to the disadvantage of all those who do not have a digital signature today.

This Bill is a solution for all those creditors who have a digital signature, who operate through electronic invoices and who today cannot appeal to expeditious proceedings such as the judicial collection process to claim their collection rights.

The advantages offered by this process instead of the ordinary process (which covers all those claims that do not have an expressly indicated procedure) is that it is a more expeditious process, it is less costly and allows the creditor to recover the flows of money that were not being received. As of the date of this article, the bill is being sent to the Executive Branch in the form of a Decree for the President’s acceptance. In ERP Lawyers we have a team specialized in Judicial Collection, which can advise you on any of your needs. Contact us at: mariapaula@erplawyers.com