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This article was translated by an automatic translation system, and was therefore not reviewed by people.
The check is a form of credit, which enjoys the presumption of liquidity, certainty and enforceability, and that these characteristics by virtue of legislation, on condition that puts extra enforcement, as understood by the Item I of Article 585 of the Code of Civil Procedure.
Article 585. Are enforceable court:
I - a bill of exchange, promissory note, in duplicate, and check the debenture;
Regulated by Law No. 7357 of 02 September 1985, the check, as the title credit, the exception rule of Article 585 of the CPC, has various actions and deadlines for different requirements, to the satisfaction of the creditor for your claim.
DEADLINE FOR SUBMISSION
To enter the different types of actions, we must first observe the provisions of Article 33 of Law No 7357/85, in verbis:
Art. 33 The check must be submitted for payment, the date of issuance, within 30 (thirty) days, when delivered at the place where there are to be paid, and 60 (sixty) days, when issued elsewhere in the Country or abroad.
Sole Paragraph - Once the check is issued from places with different time frames, it is considered as the issuance of the corresponding day of the calendar of the place of payment.
IMPLEMENTATION OF ACTION
It is necessary to the understanding of article 33, to know the first action regarding the check and your period.
The deadline for commencement of action for implementation is six months, counted from the termination of presentation and not the date of issue or date of presentation, as well the provisions Article 59 of Law No 7357/85:
Art. 59 - provided in 6 (six) months, counting the deadline for submission, the action the art. 47 of this Law provides the bearer.
Article 47, the article mentioned above, lists against whom the holder of the check can promote its implementation, therefore, thus, provides that Article 47:
Art. 47 - Can the holder to enforce the check:
I - against the issuer and the guarantor;
II - against the endorsers and their guarantors, if the check presented in time and the refusal of payment is confirmed by a statement of protest or drawn, written and dated on the check, indicating the day of presentation, or by declaration written and dated by clearing house.
The deadline for submission begins to flow from the date of the check, and incorrect to say that the action of prescribing performance in 7 or 8 months of the date of its issue and as is the place where the check was passed.
Thus, the check issued as payment in cash, is the date of issue, day by day, for this the deadline for submitting the 30 or 60 days (as the place where it was last) and after 6 more months with an incorrect count reverse.
The importance of the observation time in the implementation of this check, which is a collection of simple and rapid, in which the debtor, to make the implementation embargoes should ensure the court or, if you do not, will have assets seized by the officer of justice, if it finds and the quantity of as many as found to ensure the satisfaction of the execution or the property which the creditor in the state's initial implementation.
After those periods, the check loses the power of execution and the creditor loses the confidence that this title gives you within these time limits, leaving the other form of creditor recovery ahead we will, however, longer and without much assurance success in recovery.
SHARE EXCHANGE
Lost the time of execution, the creditor has to assist the exchange of illicit enrichment activity, which although slower than the action of execution, gives the benefit of not having to prove that besides the presentation of the check.
The deadline for the exchange of illicit enrichment action is two years from the end of executive action, so has the Article 61 of Law No 7357/85:
Art. 61 The action of enrichment against the issuer or other obligation, that locupletaram unfairly with non-payment of the check, prescribes in two (2) years, counted from the day they are consummate the prescription provided for in art. Paragraph 59 of this Act and its
The stock exchange have the question to ask yourself check, no need to inquire as to the underlying legal transaction, ie without the need of proof, the history of the title and source of credit.
Of protest
To enforce the implementation of the action or the action against the exchange endorsers and their guarantors, as appropriate, the title should have been taken to protest or to be drawn or house, declaration certifying its refusal to pay, and this procedure is required against the issuer and the guarantor, so provides the article 47 and paragraph I and II, of Law No. 7357/85, again transcript:
Art. 47 - Can the holder to enforce the check:
I - against the issuer and the guarantor;
II - against the endorsers and their guarantors, if the check presented in time and the refusal of payment is confirmed by a statement of protest or drawn, written and dated on the check, indicating the day of presentation, or by declaration written and dated by clearing house.
The text of this article and propositions, we note that the protest or the statements are really indispensable to propose implementation of action against the exchange or its guarantors and endorsers, and this required only in cases provided for in Paragraph 4 of Article 47, Law No 7357/85, namely:
Art - 47 ....
§ 4 The implementation independent of the protest and the statements provided in this Article, if the presentation or the payment of the check are hindered by the fact that the drawee has been subjected to intervention, extrajudicial liquidation or bankruptcy.
Under that paragraph, only to implement this given the protest or the statements, for which a stock exchange against endorsers and their guarantors, the protest or the statements is essential, and the creditor to do so, observe the period of protest and declarations, provisions of Article 48 of Law No. 7357, in verbis:
Art. 48 The statements of protest or the preceding article should be in place for payment or the domicile of the issuer, before the deadline for submission. If this occurs on the last day of the period the protest or the statements may be the first working day.
CIVIL ACTION
The civil action based on the causal relationship requires the investigation of the obligation assumed by the old drawer, serving the simple way to check as proof of obligation, therefore, the creditor must provide proof, check the history and origin of the claim.
In this situation the creditor may bring an action or monitoring an action for recovery, as the time elapsed since the date of the title to their issue.
ACTION MONITORING
Wasting the time of implementation and the exchange rate action, the creditor may avail himself of the monitoring action under Article 1.102a, Code of Civil Procedure, which provides thus:
Art 1.102.a - The monitoring action is to whom you want, based on written test of ineffective enforcement, payment of sum of money, delivery of fungible thing or a movable.
This action, in its procedure, it is faster than the share exchange, however, the creditor must provide proof, check the history and origin of the claim.
Should also look for the term prescricional that this situation is 3 years from the date of issuance of the check under Item VIII, Paragraph 3, Article 206, Civil Code, which says thus:
Article 206. Prescribes:
§ 3 In three years:
VIII - the claim to be the payment of the debt-claim from the salary, subject to the provisions of special law;
ACTION FOR RECOVERY
Losing the time the creditor to propose the implementation, monitoring and action share exchange, may also propose action for recovery.
After the loss of periods, the check turns up only in evidence, so that the creditor may invoke the contract between the parties, since it accepts the contract expressed the tacit if not, the check is the very contract between the parties in particular instrument.
The limitation period for recovery of action is five years from the date of issuance of the title, as provided in Item I of Section 5 of Article 206, Civil Code, as we see:
Article 206. Prescribes:
§ 5th In five years:
I - a claim for recovery of net debt as a tool in public or private;
Although there is agreement that the doctrinaire prescricional period of 5 years begins to flow after the period of action prescricional exchange, I understand that this begins to flow from the date of the check or other evidence that the date of the contract between the parties .
CHECK FOR PRE-dated
Checks pre-dated the exception became the rule in the trade, therefore, widely used in the relations of trade, although legally a form not provided for, so says Article 32 of Law No 7357/85:
Art. 32 The check is payable on demand. It is not, strictly no mention otherwise.
As you can see the text above, the check is payable under the order is not deemed accurate, with accuracy or the risk, any reference made to the contrary, being presented for payment before the deadline combined, will be payable on the day of presentation, because so says the Sole Paragraph of Article 32:
Sole Paragraph - The check presented for payment before the date specified as the date of issue is payable on the day of presentation.
The ratio of trade between the parties and involving this type of check, that shaped the principles of loyalty, respect and trust, however, with the contrary, the creditor must look up the rigor of the Law for the enjoyment of Limitations , which starts from two assumptions, namely:
1 - the date of issue if the check was made after its date, and
2 - the date of filing if the check was presented before the date of issue.
However, part of our jurisprudence has been to consider the beginning of the period of enjoyment prescricional the agreed date for the payment made in check rather than the actual date of their issue.
Thus, the time to start should be considered the date put in check for payment as agreed in the trade relationship, with both the creditor and the debtor sure this object clearly to date there is no doubt.
Bibliographic Information:
Law No. 7357 of 02 September 1985 which provides for the check and provides other measures
Law No. 10406 of 10 January 2002 establishing the Civil Code
Law No. 5869 of 11 January 1973, establishing the Code of Civil Procedure.
This article was translated by an automatic translation system, and was therefore not reviewed by people.