Debts

The Check

by Danilo Santana - Brazilian Writer

In the legal world the check is a payment order against the banking establishment that keeps, manages or provides financial resources of the issuer.

The check, therefore, is not the correct instrument to represent a debt or ensure a business to run.

While in trade, throughout the country, continues the tradition of making the check in a document of guarantee of future payment, this practice is irregular and is undoubtedly the major cause of the incidence of checks without funds.

Naturally, the costumes are stronger than formal laws and should be very difficult to eradicate the trade figure of the pre-dated check in the short to medium term, however, the evolution of the financial system has been so fast that the checks, as well as paper currency, trade relations will disappear giving more space for cards, bank transfers, credit cards and other forms of electronic transfer of cash.
 
The return of checks can cause damage to the chains with respect to your registration and in the case of checks without funds, may also be charged fees for returning.

In the case of checks returned for any enexatidão to complete the check, either on the values as either the recipient or date, no collection of fees for services and even to appear in any report or list of issuers with notes desabonadoras.

The clients that have a check returned twice will necessarily appear in your account closed and a relationship with the current account closed. The decision to include in the current register bank is not the result but the rules of the banking system.

Discarding of checks due to the current sustação imotivada that are more complex and may seem to result in criminal procedures.

Many creditors, armed with proven pre-dated checks, threatening to sue the issuing them by estelionato, but the check, therefore, has been denatured under criminal and assumed bad faith shown by the movement of check also pre-dated can be attributed to the creditor.

Furthermore many creditors who receive checks for presentation at future date, for whatever reason, the date right before the show. In this case it is characterized as a breach of contract, causing damage of any kind to the issuer, may be subject to compensation.

The courts every day, condemning employers who received pre-dated checks, and had some time before, to pay compensation for damage to the issuers, in most cases these claims are intended to recover the damage caused the shock of credit or by simple embarrassment suffered by the issuer of checks.

However note that meets the banks can not be held liable for the payment of checks that appear before the dates of their issue is that the check is a payment on demand, regardless of the date shown in the date of issue, with balance or credit on favor of the issuer, the banks can not simply refuse and return the checks.

Thus, considering these characteristics, it is essential that the consumer who purchases goods or services with pre-dated checks, to send them, do appear in some area of the check the date on which should be presented. This measure, in case of early presentation, may be the greatest proof that the check was issued to date and future payments to be made.

The early submission of the claims pre-dated checks are not true value, vary from court to court and each situation is evaluated by the degree of damage that may have suffered under the issuer moral, purely depending on the understanding of the judge.

Already a compensation for the damage depends on the material evidence of the existence of actual damage, the value of the damage and the cause and effect, or proof that the undue prejudice was the presentation of the check before the deadline. In these cases, generally, the compensation is arbitrated by the court sufficient to fully reconstitute the material damage suffered by the issuer.

The moral damages are those that affect the good name, credit, or commercial relations of the issuer of checks or cause him embarrassment, therefore, are damages that can not be measured scientifically and depend exclusively on the arbitration court. The damage, on the other hand, are those which represent a measurable economic loss and can be established by written evidence or expert witnesses.

The check has two special functions. One of the distinguishing features is that the customer has the credit to the banking establishment, printed in his own check, and it facilitates the negotiations of the issuer. The other function, even more important is the provision of credit account, automatically, when your account is no funding available within the limits and conditions of the contract.

The contracts generally provide special check of the condition and value of the claim, the validity of the availability and interest, they, in most cases do not have their rates set in advance but set its linkage with the interest charged in the very short term.

In many cases some banks exceed the setting of interest and, when requested by clients, and renegotiate the fees until the split of the flow.

The current to avoid keeping up with balance due in the current account because the interest rates for special checks are extraordinarily higher than the rates of medium-term loans, and banks, almost all, admits making the debit balances of special loan checks with substantial reduction in interest rates.

However, it must be remembered that the processing of checks special rates on loans is not a right and this is a possibility of negotiation.

Checks can be sustained without delay by telephone, with validity up to 48 hours, and then, for the sustação becomes final, the account must make your request in writing, with protocol, and always clearly detailing the reasons for sustação. When the ratio is based on loss, theft or robbery, the current banking establishment should submit to a copy of the police occurred.

When the sustação has reasons of commercial nature, because it really be given to the issuer the right to halt the payment of the check, the request must be substantiated with all this information so that the creditor, which may be a endossatário and not that maintained that the dealings with the issuer, is able to understand and evaluate the reasons for sustação.

If the bank paid a check time sustained, and can establish the current sustação formal and the date, the bank may be ordered to reimburse the account for the damage that will suffer in the face of the check payment. Thus, the Check stop should be thoroughly documented under penalty of not prevail on the legal aspect.

However, it must be remembered that the Check stop without grounds of fact or law that allows, constitutes criminal offense, as typified estelionato, and may result in criminal proceedings and until the conviction of the issuer for some years in prison.

The check has a limitation period established by law which is lower than other debt securities because it is a payment on demand, thus the limitation period is only 06 (six) months from the submission and, if the check was not made from the last day that should have been made in the bank.

The check has the presumption of liquidity, certainty and enforceability of the condition of title and credit, because these conditions and by legal fiction, is enforceable.

The implementation of the check is a form of recovery simple, fast and effective way of exchange, which, after the said court, the debtor, if not appoint the property seizure in 24 (twenty four) hours, will have seized the property that the bailiff or even find the property which the creditor state.

If the debtor has no defense to be deducted against the legality or legitimacy of the security, regardless of its arguments, it will only be produced or received by the court, after the successful seizure of property to ensure the effectiveness of implementation.

The limitation on the other hand, will all benefit from the presumed security check that can offer, in principle, including its enforceability, inevitably perish in very short space of time.

Elapsed after the prescription does not serve to check the instructions for implementing processes and may only be charged via the action of knowledge, which is slow, admits evidence and discussions around the origin of their legality and without the attachment of property prior to ensure the effectiveness of recovery.

 
But it is important, which is prescribed to get the opportunity to receive the credit through execution, not the common form, called a "process of knowledge" or "activity monitor".
 
The check, for example, no longer check and can no longer be compensated or paid by the bank after six months from the date of expiry of the deadline for submission, but may be charged by way of action or the action of monitoring locupletamento which are different forms of recovery and that met certain procedural formalities, may reach the same place.
 
 
 
The limitation period for the guarantor in the promissory note is the same as the principal debtor?
 
 
Answer:
No. The limitation period for the guarantee, if you have not signed any contract to the party and has not benefited from the outcome of the debt, will be only 03 years.
 
This is because the exchange value of the promissory note disappears and the limitation period is only the creditor to seek receive the principal debtor, through the action of knowledge on the grounds of Law staff.
 
Thus, the creditor may not include the debtor in an action for recovery of credit requirements, because the figure of the guarantor is merely change, ie, prevails only in the way of credit and not for the debtor.
 
But care should not be confused with guarantor guarantor, two different legal figures. These considerations is not addressing the legal figure of the guarantor, but only, of the guarantor.
 
Guarantor is one who signs in the way of credit document as guarantor of that exchange and not sign any contract beyond the title. Guarantor is one who signs a contract as a guarantor of debt, or the commitments, the responsibility of the bailed.

This article was translated by an automatic translation system, and was therefore not reviewed by people.