Debt recognition is probably the most efficient and neat way to have credit justified. This is a figure that, as we shall see, allows us to understand that there is a default and that, in addition, obliges the person who carries out the debt recognition to prove that he is not obligated to pay or that the debt does not exist, so that, In practice, we find a real reversal of the burden
In any case, do not forget that having justified the certainty and enforceability of a debt does not necessarily imply that it is going to be collected.. On many occasions and especially following the years of economic crisis, forceful recovery mechanisms are required.
I. All about debt recognition.
What is a debt recognition?
A debt recognition is that unilateral expression of will by which a person declares to maintain a debt with another, verbally or in writing and with expression, or not, of the cause that originates the debit.
In the words of our Supreme Court in the Judgment dated March 8, 1956, the recognition of debt is defined as “ the contract for which a debt is recognized in the sense of wanting to consider it as existing against the one who recognizes it ”.
The current legislation does not provide for this figure, but it is recognized and developed by the Jurisprudence, therefore being fully accepted in our system and with full probative value.
What is a debt recognition for?
In the circumstances in which we are today in Spain, in which businessmen and professionals are forced too often to “chase” their customers to get the proper payment, it is very beneficial to have a document in that the debtor acknowledges the corresponding amount owed, and that this document is admitted by the judicial bodies as fully valid.
If this declaration of the client is possessed, it will not be necessary to carry out any further action to prove the existence of the contract or obligation that originates the birth of the debt, even if the document containing the acknowledgment does not expressly indicate which is that cause.
This circumstance derives from the content of article 1277 of the Civil Code, which states that ” although the cause is not expressed in the contract, it is presumed to exist and that it is lawful as long as the debtor does not prove otherwise.”
Therefore, if there is an acknowledgment, it is presumed that the debt exists, as well as its causal business, although nothing is said about it in the document, and it must be the obligor who, if he wishes to oppose the claim made to him, proves that there is no debt, contract, or either.
If there is an acknowledgment, it is presumed that the debt exists, as well as its causal business, although nothing is said about it in the document, and the obligor must be the one who, if he wishes to oppose the claim made to him, proves that there is no the debt, the contract, or neither.
What form and content should a debt recognition have?
These types of declarations admit freedom fully. That means that a debt recognition can be made verbally or in writing, and in the latter case, in a public or private document.
In all these cases the recognition is valid but, yes, it is highly recommended to perform it in the most reliable way possible, to avoid finding ourselves in the need to develop a probative activity before the courts aimed at demonstrating the existence of such recognition.
the recognition but, yes, it is highly recommended to perform it in the most reliable way possible, to avoid finding ourselves in the need to develop a probative activity before the courts aimed at demonstrating the existence of such recognition.
In fact, a recognition made in a document submitted to the public, not only exempts from proving any other point related to the existence of the debt and its cause, as well as, of course, the very recognition of whose existence the notary attests, but that in addition, under article 517.2.4º of the Civil Procedure Law, said title carries execution:
“Public deeds, provided it is the first copy; or if it is second that it is given by virtue of judicial order and with subpoena of the person to whom it should harm, or of its cause, or that is issued with the agreement of all the parties ”.
As for the content, neither is required by the Court, much less a written standard, a certain pattern or information that should be included in a debt recognition. However, we can give a few indications regarding the content that should be introduced in the recognition:
- It is important to express in the document the identification data of creditor and debtor, so that there is no doubt about who the person owes and to whom.
- As important as the above, it is to indicate in an undoubted way the amount on which the recognition is made. If we talk about international business, we must specify the currency to also avoid future conflicts. Finally, it is not necessary to disaggregate the amount in principal and interests or other types of concepts, although this is beneficial for purely explanatory purposes.
- Expiration: It is true that if nothing is said about the time when the payment obligation has to be fulfilled, an interpretation should be made according to the general rules of the obligations and contracts, but precisely to avoid discrepancies in this regard, it is more It is advisable to include in the debt recognition the moment in which the debtor agrees to satisfy it or the maximum term.
- Finally, it is advisable to record the place and date of the signature of the recognition, as well as, of course, the signature of the debtor or the representative of the debtor.
Are there different kinds of debt recognition?
Our jurisprudence distinguishes the cases in which the recognition contains the cause that gives rise to the birth of the debt, and those that do not. Thus, the Supreme Court Judgment of March 1, 2002 reminds us that all business in our Ordination must be causal and never abstract, so that there must always be a cause and origin of it, although yes, it does not always have what expressly include said cause in the contract or document that embodies the business.
In this way, it is possible to speak of debt acknowledgments in which express mention is made of the cause thereof, that is, the previous contract or relationship that gave rise to the birth of the payment obligation, those in which it is expressed in the document in a generic way, and finally we find the acknowledgments in which nothing is expressed in any way regarding the cause.
Once again, we must go to article 1277 of the Civil Code to find the support that gives legality to the last two types of acknowledgments cited, and especially to the third, presuming, by virtue, that the cause exists and that it is lawful while the debtor Do not prove otherwise.
presuming, by virtue, that the cause exists and that it is lawful as long as the debtor does not prove otherwise.
II. Debt recognition and delinquency files.
Is having a debt recognition definitive to be able to collect?
Let’s be honest and clear: Today we live in a time of vertiginous growth of delinquency (although in the last three years something has been appeased), and therefore, the means that before the time of crisis were conclusive to obtain recovery due, they are currently evaded in one way or another by debtors. Regarding these means, you can know them better in our post «Extrajudicial collection of defaults».
the means that before the time of crisis were conclusive to obtain the recovery of the due, at present they are eluded in one way or another by the debtors.
The recognition of debt, as we say from the beginning of this post, is a document that accredits us in a very solid way the existence of our credit, so having one places us at the starting line of any judicial recovery procedure or extrajudicial, in order to be able to demand payment from the debtor without fearing that we can refute the likelihood of debt concurrence.
However, the fact that we can begin the claim process in the way that most convinces us with the confidence of having our credit well accredited does not imply that we will finally collect it… Rather, the claim procedures have been revealed as long, expensive and ineffective, both in its extrajudicial and judicial aspect.
Which method is the most convenient to claim a default if I have a debt recognition?
The fact of having an acknowledgment does not in itself imply that a more efficient recovery procedure is opened than the others, so it would be necessary to ask what, in general, is the way to collect the debt that is more effective, comfortable and cheap.
That is why the possibility of using when it shows a debt recognition has gained a lot of force since this delinquency file came into operation.
The possibility of using when it shows a debt recognition has gained a lot of force since this delinquency file came into operation.
Having the credit so strongly accredited through recognition, the creditor would only have to provide that document through the website, and see how the claim and publication activities that the file carries out are developed, and which we explain in detail in our post “Debt collection is easy with “.
The result would be to have a dynamic extrajudicial procedure, at a very low cost, with a high success rate and with other additional advantages such as the possibility of recovering VAT from unpaid invoices (if you want to know more about this possibility, see our post “Objective: Charge VAT”), leaving in any case open the door to judicial proceedings.
The accreditation of the existence of credit is very important, and having a debt recognition is more than advisable for this, but to direct the efforts in the recovery in a direction that is not exhausting and expensive.