Exception of Lack of Sufficient Representation or Power to Sign Credit Instruments and Analysis of Acts Giving Rise to the Belief that a Third Party is Authorized to Sign Such Instruments on Their Behalf.
The articles 8 to 11 of the General Law of Negotiable Instruments and Credit Operations establish a general rule and two exceptional norms regarding the possibility of a third party obligating another through negotiable means.
These rules can be summarized as follows:
a) As a general rule, representation to subscribe to credit instruments can be granted through a power of attorney registered in the Public Registry of Property or a simple written declaration to the third party with whom the representative is to contract (within the limits established by law).
b) The first special rule or exception case states that anyone who accepts, certifies, grants, issues, draws, emits, or endorses a credit instrument in the name of another, without having representation or authority to do so, becomes obligated in their own name, unless there is an express or tacit ratification by the apparent representative.
Express acceptance can be made on the same credit instrument or on a different document, while tacit acceptance implies acts of acceptance of the act or some of its consequences.
c) The second special rule states that when a person, through positive acts or serious omissions, leads others to believe, according to commercial customs, that a third party is authorized to subscribe to credit instruments on their behalf, they cannot raise the exception provided for in Article 8, Section III, of the General Law of Negotiable Instruments and Credit Operations (lack of representation or sufficient power) against a bona fide holder.
Certainly, addressing particularly the second special rule or exception norm established in Article 11 of the General Law of Negotiable Instruments and Credit Operations, it is clear that the legislator establishes a legal presumption as a consequence of the error that the actions or omissions of a person may induce, leading others to believe that a third party is authorized to obligate them through negotiable means. In this case, the credit instruments subscribed by the presumed representative OBLIGATE the supposed represented party through negotiable means.
In this regard, the Supreme Court of Justice of the Nation, in the isolated thesis of the Third Chamber of the Supreme Court of Justice of the Nation, published in the Judicial Weekly of the Federation, Volume LXXII, civil matter, visible on page 773, "CREDIT INSTRUMENTS, SUBSCRIPTION OF, ON BEHALF OF ANOTHER," has interpreted that even though the legal framework does not determine what should be understood by positive acts or serious omissions, the judge must assess these facts, taking into account the expression "commercial customs," which is subject to the judge's judgment of the facts.
The High Court has also indicated in the isolated thesis of the same Third Chamber of the Supreme Court of Justice of the Nation, published in the Judicial Weekly of the Federation, volume 145-150, fourth part, civil matter, visible on page 481, under the heading "CREDIT INSTRUMENTS, PRESUMED AUTHORITY, WITH RESPECT TO THIRD PARTIES, FOR SUBSCRIPTION OF," by way of example and enumerative, but not limiting, that such representation or authority can be inferred when the merchant authorizes a person to handle the business bank account, place orders, receive goods, sign business correspondence, or make arrangements with other people, as acts have been committed that lead to the belief in the existence of authorization to obligate through negotiable means.
Regarding the temporality of these positive acts or omissions, from Article 11 of the General Law of Negotiable Instruments and Credit Operations, it can be inferred that the expression "[...] has led [...] to believe [...]" refers to a circumstantial time relationship, meaning that the legal presumption arises as a consequence of another fact; therefore, it may signify that the acts or omissions must precede or at least be contemporaneous with the subscription of the credit instrument, and not that they occur after the subscription of the same; this interpretation has also been considered by the Supreme Court of Justice of the Nation in the isolated thesis of the now-extinct Third Chamber published in the Judicial Weekly of the Federation, volume 15, fourth part, civil matter, visible on page 55, "CREDIT INSTRUMENTS, EXCEPTIONS AGAINST."
Indeed, specifically speaking of legal entities, it can be concluded that the acts referred to in Article 11 of the General Law of Negotiable Instruments and Credit Operations must be carried out by the organs or individuals who legally represent the legal entity. It is precisely the actions taken by those with legal representation of the entity that can lead to the belief that a third party without power or authority to represent it is authorized to obligate it through negotiable means.
Under these considerations, it can be inferred that in a specific case, when the exception contained in Section III of Article 8 of the General Law of Negotiable Instruments and Credit Operations is invoked but the issuance of invoices is proven as a document verifying a commercial relationship between the parties, and which gives rise to the credit instrument, in the sense that the latter is subscribed under the condition that, if not paid upon maturity, the invoices that cover the commercial operations derived from a credit line granted, its payment could be demanded. Additionally, proving the receipt by the defendant of the merchandise covered by the invoices would constitute positive acts that led to the belief, according to commercial customs, that the person who signed the promissory note was authorized to do so. This, coupled with it being a case of tacit ratification of the promissory note by the signatory, in accordance with Article 10 of the General Law of Negotiable Instruments and Credit Operations.
It is important to note that in the thesis "CREDIT INSTRUMENTS, REPRESENTATION TO SUBSCRIBE THEM ON BEHALF OF ANOTHER," from the Third Chamber of the Supreme Court of Justice of the Nation, published in the Judicial Weekly of the Federation, Volume LXXXIX, civil matter, visible on page 2529, the Supreme Court of Justice of the Nation considered that when the exception of lack of representation or power of the person who subscribed the credit instrument in their name is invoked, the burden of proof falls on the plaintiff to demonstrate that the defendant gave rise to positive acts or omissions, based on which it was believed, according to commercial customs, that the subscriber of the credit instrument was authorized to do so, in order to thus update the exception provided in Article 11 of the General Law of Negotiable Instruments and Credit Operations.
