THE CERTAINTY OF DEBT DECLARATION IN PREPARATORY MEASURES TO MERCANTILE EXECUTIVE JUDGMENT
The preparatory measures for mercantile executive judgment are regulated in Article 1165 of the Commercial Code and can be used as a tool for individuals who have a private document containing a liquid and certain debt. They can request the judge to have the debtor carry out a recognition of the debt, signature, and origin through it, and subsequently, this document will be sufficient to initiate a mercantile executive lawsuit against the same.
En este procedimiento, pueden ocurrir tres supuestos:
The first scenario occurs when the debtor cannot be located despite being searched for on 5 occasions. In this case, the judge will safeguard the rights of the applicant for them to be asserted in the appropriate manner.
The second scenario is when the debtor or representative is located and, after being requested twice, refuses to answer whether the signature is theirs or not. In this case, the consequence will be that the signature will be considered recognized.
The third scenario is when the debtor acknowledges the signature, origin, and amount of the debt; consequently, the debt will be considered certain.
The fourth hypothesis arises when the debtor acknowledges the signature but not the origin or amount of the debt. In this case, they will be given a period of 5 days to provide documentary evidence to support their response. If they fail to do so, the judge will consider the debt to be true in its entirety or the amount that has not been proven to be owed.
Finally, the fifth scenario is when the debtor is located but denies the signature. Here, the judge will safeguard the rights of the applicant to assert them in the appropriate manner. However, if the falsehood of their statement is proven, the public prosecutor will be notified.
From the above, it can be inferred that there are three types of resolutions in this procedure: first, the rights of the applicant are safeguarded for later assertion; second, the signature is considered recognized; and third, which is most relevant for mercantile executive judgment purposes, is the one concerning the judge's certainty of the debt.
Regarding this, we can deduce that the Judge who presided over the preparatory measures is not only authorized but obligated to issue the resolution in which the certainty of the debt demanded from the defendant is recognized so that this preparatory procedure becomes enforceable. This is because the fifth paragraph of numeral 1165 of the Commercial Code expressly provides for the issuance of said determination.
With support from the arguments above and in terms of Article 1165 of the Commercial Code, in the opinion of the undersigned, for preparatory measures for mercantile executive judgment to be considered as an enforceable instrument that entails execution, it is necessary for the judge who presided over the preparatory procedure to issue the resolution in which the certainty of the debt demanded from the defendant is recognized. Subsequently, certified copies should be issued to the requesting parties, and only then will the document be legally enforceable, allowing the initiation of the mercantile executive lawsuit.
