Late payments are one of the most frequent difficulties in the supply chain, generating one in four insolvency situations for companies with tax headquarters in the European Union. This problem not only harms the financial stability of transport companies, manufacturers and exporters, but also spreads like an oil stain 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 deal with them appropriately.
WHAT IS THE PAYMENT TERM ESTABLISHED BY LAW?
ccording to European Directive 2000/35/EC, the general payment period is 30 calendar days from the date the services are performed 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 transactions.
IS IT POSSIBLE TO SET DIFFERENT TERMS?
In this context, we must respect the deadlines set out in the contract, in this way we will comply with what has been agreed between the parties in the corresponding contract or agreements, although in no case may they exceed the minimum standards set by law, that is, 60 days.
Thus, any clause that sets a longer period will be susceptible to being considered null and void.
HOW DO WE PREVENT NON-PAYMENTS?
Regardless of the causes and circumstances that lead to non-payment, the most
recommended way to avoid them is to maintain a preventive approach and carry out a
small prior risk assessment, especially if we cannot carry out the
operation through pre-paid (pre-payment):
Firstly, evaluate the solvency and reputation of the potential client before contracting.
There are public and private registries that can offer us valuable information in this
regard. In Spain, for example, we can go to the Public Bankruptcy Registry to
find out if the company is insolvent or assess the status of the
annual accounts of the Commercial Registry.
Secondly, establish clear contractual clauses on the consequences of
non-compliance or late payment by means of penalty clauses that assess this
damage (economic penalties).
Thirdly, establish in the corresponding contract a clause of jurisdictional
submission in case of conflict, to the court that suits us best. 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, with the place where the parent company or main center of economic
interests is located. Last but not least, prior guarantees such as documentary credit, in which a financial institution will assume the risk of the operation. However, as an alternative, bank guarantees and deposits can be established
to offer us options to guarantee payment.
HOW DO WE DEMAND A NON-PAYMENT?
We recommend the following course of action:
⦁ Send a reliable communication to the client with the aim of solving the non-payment
in a friendly manner, in this way it will serve to interrupt the legal prescription period
of the possible judicial claim (1 year in general).
⦁ If the situation drags on, we suggest retaining the deposited financial guarantees
even by carrying out preventive seizures, whenever possible.
⦁ File a claim for an amount before the Courts of Justice.
We advise to raise a monitoring procedure for the claim of overdue and payable debts, which is the fastest to process.
In this way, if the debtor does not oppose or does not 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 to notify the debtor that a necessary bankruptcy proceeding will be requested (the one requested by a creditor), which may lead to the opening of the sixth section of the bankruptcy proceeding, corresponding to the bankruptcy classification. In this case, guilt will be more than likely, which will result in the liability of the corporate administrators and the obligation to personally assume the debts acquired by the company.
This means that the limitation of liability offered by the corporate format will disappear and that its administrator will respond with its present and future assets in accordance with the universal patrimonial liability of article 1911 of the Spanish Civil Code.
Although in these lines we try to define some guidelines to prevent non-payments and to claim them with certain guarantees, it is more than advisable to seek appropriate advice for each specific operation, including establishing an internal protocol of action that foresees these situations of non-payment that become as harmful as they are uncomfortable.
Felipe Serrano Pérez lawyer and founding partner of International Transport Lawyers
