HOW TO ACT ABOUT NON-PAYMENTS IN THE PURCHASE OF GOODS?

Late payments become one of the most common problems in the supply chain, generating one in four insolvency situations of companies with tax headquarters in the European Union.

This problem not only affects the financial viability of transport companies, manufacturers and exporters but also spreads like an oil spill, affecting suppliers and other associated services. That is why, in this article we will propose some lines of action to prevent them and how to act against them.

WHAT PAYMENT TERM DOES THE LAW STATE?

In accordance with European Directive 2000/35/EC, the general payment period is 30 calendar days from the time the services are provided or the goods are received, but in no case may it exceed 60 days.
This directive has been transposed in the member states for its integration through the corresponding national regulations, in the case of Spain through Law 3/2004, of December 29, which establishes measures to combat late payment in commercial operations.

CAN OUR CONTRACTS ESTABLISH DIFFERENT DEADLINES?

Within this context we must comply with the contractually established deadlines, in this way what was agreed between the parties in the contract or corresponding agreements will be followed, although in no case may they exceed the minimum standards established by law, that is, 60 days.
Therefore, any clause that establishes a longer period will be liable to be considered null and void and will not have any effect.

HOW DO WE AVOID NON-PAYMENTS?

Regardless of the causes and circumstances that cause non-payment, the best strategy and solution to avoid them is to maintain a preventive attitude and carry out a small prior risk assessment whenever we cannot carry out the operation through pre-paid:

First of all, evaluate the solvency and reputation of the potential client before hiring.
There are public and private registries that can offer us valuable information in this regard. In the case of Spain, we can go to the public bankruptcy registry to find out if the company is in a situation of insolvency or evaluate the annual financial statements of the Commercial Registry.

Secondly, contractually establish the consequences of non-compliance or delay in payment through penal clauses that assess this damage (economic penalties).

Thirdly, establish in the corresponding contract a jurisdictional submission clause in case of conflict, to the court that best suits us. In this case, it is usually recommended that the court to which we submit contractually coincides with the country where the tax headquarters of our company is located, and in the case of having several headquarters, in the place where the parent company or main center of interests is located. economical.

Last but not least, constitute prior guarantees such as documentary credit, in which a financial institution will guarantee the risk of the operation, although it is also possible to constitute guarantees and bank deposits to offer us an alternative payment guarantee.

HOW DO WE CLAIM A NON-PAYMENT?

We propose the following line of action:

⦁ Send reliable communication to the client in order to resolve the non-payment amicably, in this way we will break the legal prescription of the possible judicial claim (1 year in general).

⦁ If the situation continues, we recommend retaining the financial guarantees deposited even by carrying out preventive embargoes, as long as possible.

⦁ File a claim for a claim before the Courts of Justice.
We recommend setting up a monitoring procedure for claiming overdue and payable debts, which is the fastest to process.
In this way, if the debtor does not oppose or answer the claim within the 20 days established by 815 of the Civil Procedure Law, the court will issue an executive title and we will be able to issue execution against the debtor’s assets.

A mechanism that may be effective is the communication to the debtor that a necessary bankruptcy will be requested (the one requested by a creditor), which may give rise to the formulation of the sixth section of the bankruptcy, corresponding to the bankruptcy qualification. In this case, guilt will be more than probable, which will result in the responsibility of the social administrators and the obligation to personally assume the debts acquired by the company.
Therefore, the limitation of liability offered by the corporate format will disappear and its administrator will respond in accordance with the universal patrimonial responsibility of article 1911 of the Spanish Civil Code, with its present and future assets.

Although in these lines we try to define some guidelines to avoid non-payments and claim these with certain guarantees, it is more than advisable to obtain appropriate advice for each specific operation, including establishing an internal action protocol that foresees these situations of non-payment that become as harmful as uncomfortable

Felipe Serrano Pérez lawyer and founding partner International Transport Lawyers

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