Summary
This work includes as its main content, the application of the Bill of Exchange in the country's payment system, a subject that has caused numerous expectations throughout the Cuban business environment since its insertion on November 1, 2000, as regulated in Resolution 56/2000 and Resolution 64/2000.
The investigation begins with a doctrinal analysis on the Bill of Exchange and its treatment in modern commercial relations, emphasizing the legal effects that it produces and that distinguish it as an advantageous instrument of payment, credit, and guarantee. Then an analysis of its operation in the collection system in the country and abroad is carried out, to subsequently carry out a detailed study of existing legal regulations and thus detect possible legislative gaps, which leave without legal protection the problems that they are being presented in the process of their application to the business system. Finally, based on the surveys and interviews carried out with Cuban businessmen,the work determined the existence of factors that hinder and favor the broad application of the Bill of Exchange to the country's payment system. It is for this reason that the general objective outlined in this research was: to evaluate from a legal point of view the application that the Bill of Exchange has had in payment relationships in the provinces studied. The main results obtained refer to: that there is a lack of knowledge on the part of businessmen about the use of bills of exchange, and the greatest difficulty in both drafting and accepting bills was the centralization of foreign currency accounts in some organizations; in the case of banks there is no communication network between the different branches and lastly,The greatest advantage presented in the use of the bill was the offer by the bank of numerous services related to the instrument that facilitate the entire process.
Summary
The present work picks up as main content, the application of the Letter of Change in the system of payments of the country, thematic that has caused numerous expectations in the whole Cuban managerial environment starting from its insert the First of November of the 2000, according to that regulated in Resolution 56/2000 and the Resolution 64/2000.
The investigation begins with a doctrinal analysis on the Letter and its treatment in the modern mercantile relationships, making emphasis in the juridical effects that he / she takes place and that they distinguish it as an advantageous payment instrument, of credit, and of guarantee. Then he / she is carried out an analysis of their operation in the system of collections of the country and in the exterior, he / she stops later on to carry out a detailed study of the existent juridical regulations and this way to detect possible lagoons legislatives that you / they leave without legal protection to the problems that are presenting in the process from their application to the managerial system. Lastly,starting from the surveys and interviews carried out Cuban managers (the universe of the work for the surveys was of 20 companies of the county selected by BANDEC and BPA starting from that they represent 80% of the companies that indeed had used in bigger or in smaller measure the I title, divided in the sectors of 7 companies of the MICONS, 4 companies of the SIME, 3 companies of the MINAGRI, 3 companies of the MINAL, 1 company of Provincial Popular power, 1 company of the MINIL, 1 company of the MINAZ; the interview you apply expert officials in the topic of the BPA and BANDEC in Camaguey and City Havana, National Bank of Cuba, notaries of Camaguey and judges of the Rooms of the Economic thing of the Popular Supreme Tribunal and of the Popular Provincial Tribunal of Camaguey),the work determined the existence of factors that you / they hinder and they favor the wide application from the Letter to the system of payments. It is for this reason the one that objective general layout in this investigation was: to evaluate from the juridical point of view the application that has had the Letter of Change in the payment relationships in the studied counties. The main obtained results refer to: that an ignorance exists on the part of the managers about the use of the letter of change, and the biggest difficulty so much to liberate as to accept letters, it was the centralization of the bills in foreign currencies in some organisms; in the case of the banks a communication net doesn't exist among the different branches and lastly,the biggest advantage presented in the use of the letter was the offer on the part of the bank of numerous relating services to the instrument that you / they facilitate the whole process.
Introduction
"The achievements in this field have not been much, and much remains to be done in terms of integration and planning in science and technology to the development of the national economy, in the integration of results to production and services and in full implementation of the scientific policy required by the country ”.
For this reason, this research has been carried out, with the aim of achieving better results in production and, therefore, in the country's economy, so that the achievements of the Revolution are also directed in this direction.
The origin of the Bill of Exchange as the first payment or pecuniary value cannot be precisely detailed, so the first glimpses appear in Italy (SXII, XIII) at the time of the Renaissance, evolving to acquire its characteristics of today. Its appearance is linked to the Exchange Contract that bankers used to avoid the danger of moving coins from one region to another and the first form of Bill of Exchange that was known was when turning the currency against the same subject that deposited it.
The letter has gradually evolved and in its development it has presented numerous functions that have determined the importance it has today, these are, credit, guarantee and payment. In a first period the letter works exclusively as an instrument of the Contract of Change trajectory that avoided the transportation of money from one place to another; over time, its use expanded as a payment currency in national and international commercial transactions, replacing metallic money for this purpose.
Its credit function is of extraordinary interest, the Bank grants credit without the need for its own funds, at the sole risk that the client will not remit the amount of the letter before its maturity.
In the case of Cuba, the Bill of Exchange has undergone several stages, dampening our conditions, the first existing commercial legislation was the Spanish Commercial Code of 1889, with which all collection and payment instruments began to be used in all types of operations. mercantile (foreign and internal trade); then in a second phase DL-24 of May 15, 1979 entered into force limiting the Bill of Exchange only in operations abroad, eliminating state companies from this scope (Art. 1 DL-24). Subsequently, on February 15, 1982, DL-50 enters into force, which will create the Economic Associations between foreign and Cuban entities empowered to use in their operations the Spanish Commercial Code of 1889 in force in Cuba,complementing the above with Law 77 of 1995 on Foreign Investment. After an in-depth analysis by the Central Bank of Cuba (BCC) and the Executive Committee of the Council of Ministers, taking into account the insertion of business improvement and the search for greater efficiency in our economy, AGREEMENT No. 3619 was issued, of December 28, 1999, of the Executive Committee of the Council of Ministers; which experimentally authorizes the use of Bills of Exchange, Checks and Promissory Notes, in the national territory, also indicating the authorized subjects. Already in this last stage, a series of documents were started to complement the experimental use of the aforementioned instruments, among these are INSTRUCTION No. 160 of the Governing Council of the Supreme People's Court,referred to the competence of the Chambers of the Economic of the People's Courts to hear the litigation that arose in the matter of Bills of Exchange, Promissory Notes, and Checks in relation to the subjects that are expressed in its text. This was followed by Resolutions 56 and 64, both from November 1, 2000 of the BCC, which include in its body all that refers to the new payment instruments. Finally, due to non-compliance regarding the use of the letter in the business system, comrade Carlos Lage Dávila issued a Letter addressed to all Heads of Bodies of the Central State Administration and Presidents of the Councils of Provincial Administrations pointing out a series of measures to take with those who have not used it,then reflected by the Minister President of the Central Bank of Cuba (BCC) Francisco Soberón Valdés on March 19, 2001. At this time, the BCC issued a new resolution No. 74 of 2001, which is a complementary resolution to 56 and 64, which enables authorization by unions to their subordinate companies to accept letters, among other things.
It is vitally important that all business subjects authorized to experimentally use the Bills of Exchange have in-depth knowledge of the subject so that this payment, credit and guarantee instrument meets its objective, understanding the advantages to be obtained if its correct application is achieved. This explains the efforts dedicated by the BCC to provide detailed information on the subject, to achieve a full understanding of the consequences that it generates, establishing that these companies will be able to act and respond to their operations with their financial resources, being understood by them, the monetary resources, the monetary income obtained from the accounts receivable, as well as the effects and any other accounts receivable up to covering the amount of the sums owed.If the Bill of Exchange works properly, this could be a solution to the chain of defaults suffered by the Cuban economy, but only if all those involved cooperate in it.
Thus, through our research, the aim is to help a better analysis of the use of the Bill of Exchange, from the base to the levels of business management, compiling criteria and suggestions that lead to conclusions as to why there are difficulties in its application, all this in conjunction with the help and advice of the Provincial Delegation of Banco de Crédito y Comercio (BANDEC) and Banco Popular de Ahorro (BPA) of the province of Camagüey.
- Therefore, this research focuses on the following PROBLEM:
What have been the main factors that have had a positive or negative impact on the application of the Bill of Exchange in the payment system, through the examples of the provinces of Havana City and Camagüey?
In order to respond to it, the following was drawn up as a GENERAL OBJECTIVE: To evaluate from a legal point of view the application that the Bill of Exchange has had in payment relationships in the provinces studied.
- The SPECIFIC OBJECTIVES were:
1. Make a doctrinal historical exposition of the evolution, peculiarities and importance of the Bill of Exchange as a payment or pecuniary value.
2. Analyze the legislation that regulates the Bill of Exchange currently.
3. Determine the factors of different nature that hinder and favor the wide application of the Bill of Exchange to the studied payment system.
The HYPOTHESIS designed was: There are factors of different nature that hinder and favor the wide application of the Bill of Exchange.
To carry out the work, a bibliographic review of national and foreign authors was carried out, which served as a basis to complement the bill of exchange from a conceptual point of view.
DEVELOPING
1.1 Analysis of the Legislation.
COMMERCIAL CODE
The bill of exchange must contain different requirements for its validity, our Commercial Code (Cc) collects all, but it must be clarified that it does not clearly and precisely collect the place of payment thereof; although it does say that the domicile of the drawee must be stated, which is taken as the place of payment of the obligation contracted by the drawee. In practice, our model has the clause ²We accept to debit in our account or to make the payment², understand the account as the address of the drawee where the holder of the document will go to make the payment, this account is a bank account that the drawee has in a bank.
When the bill is domiciled in a Financial Institution it is a Domiciliary Bill, and when it is not, then it will have to be collected at the address of the drawee, but it must be clarified that our model has no place to collect the address of the same Therefore, when it comes to appearing before him to satisfy his obligation, it is not known by the holder of the letter where he should go.
There are different ways of turning the letter, which serve for the use of any businessman, but it must be stated that it does not include the classic form at the order of the taker, although according to scholars it is stated that everyone who handles the title should know this when know that it is a bill of exchange; It is also important to state that our legislation does not provide information on each of the ways of turning a letter to expand the knowledge of businessmen, which is important when using the document in business operations, knowing the benefits or damages that each one can cause.
The bill of exchange is said to be damaged when it is not presented for acceptance, payment or when having been presented it is not protested in due time and form, so the holder may not act against the drawer or against any of the endorsers and if it is not harmed then it will demand of these the value of the letter with the expenses of protest and replacement. Now regarding this, the legislation presents a gap, since it does not make clear what action is incumbent on the holder once the bill is damaged, it only remains to deduce that if he cannot act on the way back against the drawer or any of the endorsers, nothing else will remain the action against the accepting drawee. The doctrine states that when this happens only the holder has direct exchange action against the acceptor,the action against the drawer provided that at maturity he had not made provision of funds for the payment in the prescribed terms and the exchange enrichment action against the person who has profited unduly from the bill, the second product not being able to be used unless protested, but the action against the acceptor and the enrichment according to the doctrine, does not need a protest, so the holder may act against them. On the other hand, the Law of Civil Administrative and Labor Procedure (LPCAL) in its article 486, subsection 5 states that the liquid, expired and enforceable credits against the acceptor of the letter will have executive force, even without the protest, through the recognition of his signature if requested (Art. 521 Cc), which clarifies the omission of the Commercial Code (Cc),clarifying that this legislation does not belong to the Economic Chamber, but is used in a supplementary way in it. The problem is that Instruction 160 of the Supreme People's Court in its fourth provision limits this action when it says that: ²Those processes that originate from bills of exchange, damaged promissory notes, will be substantiated in accordance with the procedural rules that govern said Chambers. of Justice²,they will be substantiated in accordance with the procedural norms that apply to said Chambers of Justice²,they will be substantiated in accordance with the procedural norms that apply to said Chambers of Justice², which will be the ordinary procedure. We do not understand the reason for this limitation when, according to the foregoing, this action against the acceptor, who will almost always be the only one that will exist in the trade relations of our companies, does not need protest; being able to analyze the debt in a much faster and more agile trial.
The direct and return exchange actions appear in the Cc but it is given such wording that one comes to think that it is an action against any of them separately, so it must be made clear that it is the direct action against the acceptor and the return against the drawer or against any of the endorsers. These actions are solidary and their solidarity is that if the amount of the bill cannot be reimbursed by claiming an obligor, the claim may be directed against another, the actions may be against any of the obligors.
Said CC includes the actions previously mentioned in its articles 516 and 517, in addition to collecting the extra-exchange enrichment action in article 525, but does not include the causal extra-exchange, against the one who carried out the mandate or against the one from whom the letter was received.
RECOMMENDATIONS ISSUED BY THE BCC
The domiciled bill of exchange is that in which the payment address is designated by the drawer or the drawee. It is advisable to domicile the payment in the bank account of the drawee at the time of acceptance, which makes it possible for the holder to go to the Bank where the account is located at the time of maturity and assert their rights by collecting the same. This option converts the letter into an account debit authorization that simplifies collection management, therefore the domiciled letter provides security in the collection at the maturity of the security. When issuing a Bill of exchange not domiciled, the holder upon the expiration date will have to go directly to look for the drawee at his home without knowing where he is, since his address for payment has not been recognized in the bill.This happens when the letter has not had a previous contract where the general terms of the parties and their domicile have been stipulated. Hence, it is useful since there is no contract that the bill includes the address of the drawee where the holder must go at maturity to collect (Recommendation No.1). This leads to the model recommended by the BCC lacking this element, in addition we must state that it recommends that it can be used by any entity in the national territory, however different ones can be used.Hence, it is useful since there is no contract that the bill includes the address of the drawee where the holder must go at maturity to collect (Recommendation No.1). This leads to the model recommended by the BCC lacking this element, in addition we must state that it recommends that it can be used by any entity in the national territory, however different ones can be used.Hence, it is useful since there is no contract that the bill includes the address of the drawee where the holder must go at maturity to collect (Recommendation No.1). This leads to the model recommended by the BCC lacking this element, in addition we must state that it recommends that it can be used by any entity in the national territory, however different ones can be used.
Regarding this format, we can also argue that it is somewhat extensive since it includes the concept, where a brief explanation is given about the operation that gave rise to the letter, which is superfluous, since it is not mandatory to have a contract signed since the letter itself is a value title that has a life independent of the relationship that gave rise to it. In addition, the relationships that exist between the entities and that are documented with letters or where they are used as means of payment, must be stated in a formal document that establishes the terms and conditions in which it will be carried out; which makes us recognize that it breaks in this way with the literal nature of the letter itself, which contains an eminently executive character without depending on the operation that gave rise to it.
Another of the difficulties found in the model is given that when issuing the bill the drawer, in the "Documents related to the use of the Bill of Exchange, the Note and the Check in the national territory"; They inform the same that in the part PAY TO THE ORDER OF, the name of the drawer must be put (for using the way of turning to his own order), not always being so because when issuing another of the modes the drawer will not be the holder, so the holder's name must be entered when the letter is turned; that is to say, in favor of who will direct the Bill of Exchange who will be the beneficiary of the bill collection (Recommendation No.3).
When the holder of the Bill of Exchange has it and it has already been accepted by the drawee, it can be directed against it or against the guarantor for its payment, but it must be indicated that the guarantee is an accessory relationship to the main one that nevertheless, if it is jointly and severally, it is limited to the obligation of both to satisfy its amount, making it clear that the drawee is the exchange and direct obligor, and not by having a guarantor is released from liability, because before the holder turns against the guarantor, directed against its endorsed. It is a joint guarantee where the guarantor pays if the main debtor cannot, being in the same position as the guarantor. The wording of this recommendation implies that the holder can go to one or the other interchangeably, he can demand payment from the guarantor without having demanded it from the guarantor,which is not the case (Recommendation No.6).
As we have previously discussed, the scope of application of the Bill of Exchange is limited to transactions for the sale of products or services and the drawee will accept it only upon receipt of the contracted goods and / or services; demonstrating how narrow this framework can be for business practice, since according to Art. 443 of the Commercial Code the letter will be considered a commercial act, equating its status as a document to it, later demonstrating that the letter may be used in all types of transactions mercantile, such as Leasing contracts, communications, etc. (Recommendation No.11).
In our collection system, it is recommended to use letters drawn up at the drawer's order where he will assume the double position of drawer and document holder, who will retain possession of the letter as long as he does not put it into circulation, since to endorse it to another person, would become the new fork. The objective of using this way of turning the bill is that in this way the creditor or drawer of the bill can recover from the debtor (drawee) the amount corresponding to the value of the debt between the two under a documented contract with a Bills of exchange in order to maintain discipline in the collection and payments of the system. There are other ways of turning the letter such as "Against the drawer himself" or "In charge of the drawer", where the latter works as a drawee at the same time;in this it is required that the transfer be made in a different place from the domicile of the drawee and the drawer-drawee may accept the letter or not and, as the case may be, he will respond directly to the holder as acceptor or on the way back as drawer. The drawer as a creditor of the credit when writing the letter has the objective that the drawee pay a third person to whom he owes.
In our commercial operations covered by letters, this mode is difficult, due to the existence of a credit relationship between creditor and debtor where the former seeks payment of the credit using this title as a means of payment or guarantee, it will then be impossible for the drawee pay the letter holder. Now, if the debtor is the one who turns the bill acting as a drawer, paying himself to the creditor in his position of drawee, we are in the previously stated way, thus guaranteeing the discipline in collections whenever the bill is turned; the difficult thing is for the debtor to turn the bill, so it is up to the creditor to demand this, stipulating in the contract established by both parties or in the debt reconciliation, the means of payment. There is also the way to turn to the "Order of the taker",which is the classic way of turning the letter, in this the three personal elements are kept: drawer, drawee and holder or holder of the letter; In our system, it can be used more effectively if the Bank acts as a drawee, having the obligation to pay the holder once it is presented to its branch to make the credit payment effective, with the drawer having sufficient funds in his account.
The last way to rotate the letter by the drawer is "On behalf of a third party" or "In his own name but by order and account of a third party, which must be expressed in the letter", where the true drawer of the letter is undercover, it is a mandate that the third party makes to the drawer to rotate a letter in order to make a payment, the name of the third party will never appear in the exchange relationship, his relationship with said drawer is extra-exchange, thus the holder to the When demanding payment, you can never go against the third party but against the drawer who is not released from his responsibility.
This way of turning the letter is not conducive in our financial relations because it has no objective that a third party who owes another entity acts as the authorizing officer of a mandate to a drawer to turn a letter, when he as a legal entity is empowered To do so, this would only happen in the event that you are not empowered to rotate a letter, so you would use this method to obtain executive support, even if you have to pay a commission for the mandate issued to the drawer; This may be a solution for the Basic Budgeted Units or other organizations that depend on the state budget or those that are not constituted as legal persons (Recommendation No.12).
Those drafted to operate as such must have an account in a financial institution so that the latter is addressed to the holder at maturity (domiciled bill), possessing the same firms authorized to operate. This dilemma brings with it problems, since in Business Unions there are centralized currency accounts that can only be managed by the Union, these acting as if freed from their dependencies, in practice this does not happen because the entities belonging to a Union cannot operate the accounts, since they do not have them, they act as freed from documented operations with letters, without fulfilling the established requirement to show, at the time of signing the contract, the document that authorizes them to accept said account (Recommendation No. 17).
RESOLUTION 56 AND 64 OF 2001
In Chapter V, Art. 9 of Resolution 56, the documentation of commercial operations with a bill of exchange is limited to when there is a commercial credit and its amount is greater than $ 5000.00 MLC or CUP; being only in this case mandatory. Now, in transactions that do not meet these requirements, entities are not obliged to use bills of exchange, except for what is stipulated in the contract and this is by agreement between the parties and the debtor cannot be forced to accept a letter as a means of payment. The same happens with regard to debt reconciliations prior to November 1, 2000, where it is required that the amount of the same be greater than $ 5000.00 MLC or CUP, this amount being above many times the actual debts that exist in the business sector,In addition, it is not clarified that debts after November 1 may be documented with bills of exchange and what is the maximum or minimum term to carry out this documentation (Transitory Provision of Resolution No. 64/01).
1.2 Analysis of the behavior of the Bill of Exchange in Havana City.
In the province of Ciudad de la Habana, the Bill of Exchange has not presented notable difficulties in operations in MLC, and has not behaved in this way in MN, where problems have had a more frequent impact. The Bank has taken an energetic position regarding this and in support of it, immediately after the judgment has been issued by the court in the executive proceeding, it proceeds to suspend all banking services for the account in question, giving the letter the order of priority. that corresponds to the collection of the same. The two fundamental problems raised by the Central Office of BPA were the profound ignorance of the subject, despite the fact that numerous documents had been issued by the BCC, with the aim of training all officials, not being aware of the responsibility it generates;and on the other hand, the centralization of the accounts in the case of the MLC, the Bank not being liable for not responding to the drawer by those people who do not have an authorized signature and are its clients; this being one of the root causes of the mishandling of Bills of Exchange, because if you do not have an account to operate, you should not act as acceptor or drawer of the bill without the authorization of the higher body, who would become guarantor of the operation.because if you do not have an account to operate, you should not act as acceptor or drawer without the authorization of the higher body, who would become guarantor of the operation.because if you do not have an account to operate, you should not act as acceptor or drawer without the authorization of the higher body, who would become guarantor of the operation.
In the province, difficulties have also been reported with notaries regarding their territorial competence, since in order to issue a protest, the action that it generates has to be in its demarcation and this hinders commercial operations because relations with businessmen are maintained. of all the Cuban territory.
In the Economic Chamber of the Supreme People's Court located in said province, difficulties were alleged in the use and application of the Bill of Exchange regarding:
1. The agencies of the MINFAR, MININT, Foreign Trade Companies and Commercial Companies (SA) whose competence corresponds to the TSP, without taking into account the territorial area of each; in other words, when one of these organizations files a dispute with another entity, the TSP will appear in the defendant's area to hear the case. At this time, Instruction No. of the TSP has already been approved, which authorizes the Economic Chamber of the TPP to hear such matters when the defendant is in their territory. In addition, Resolution 223 was issued in 2001 regarding the jurisdiction of the Courts.
2. The protests for non-acceptance presented the difficulty of not being able to meet in executive trial, but in an ordinary procedure because the non-acceptance must be proven, that is, the party that does not accept must allege the reasons for which it did not accepted the letter, there being no evidentiary phase in the executive process.
3. The additional expenses of the process, such as the protest and the legal service contract, were not applied as procedural costs since they were prior to the executive procedure. Firstly, as a solution, Letters of Resaca began to be issued in which the amount of the original letter plus the additional costs is collected, which required a new acceptance, presenting the same problem again, but the solution itself lies in the fact that the letter of Hangover has to be turned on sight so it doesn't need an acceptance. The Hangover Letter is a claim for those obliged who did not pay on the due date. The other alternative was to take the amount of the bill in executive trial and the additional expenses in an ordinary procedure for compensation,This was extremely cumbersome, as the same case was heard twice in different processes at the same time, and there were ordinarily extensive terms that would delay the collection of said additional expenses. As neither of the two solutions is feasible, the court, according to its discretion, in the judgment demanding the amount of the bill, decides on the other additional expenses that the plaintiff has incurred.
4. Art. 486 subsection 5 LPCAL gives the possibility of acting against the acceptor of the letter in executive trial even without protesting, a trend that began to be accepted at first corresponding to direct action against the accepting drawee, which according to the doctrine does not need protest; Subsequently, the previous Art. was discontinued as it was in contradiction with Instruction No. 160 of the TSP, which only allows to know in executive judgment the letters not affected. At this time, this action held by the holder or holder can be exercised if, within the eight days to protest, he goes to the court with the aim of recognizing the signature of the obligor; and not before a notary to raise the protest,in this way the letter is damaged but the obligation contracted between the parties is recognized before a public official.
5. The non-seizure of state assets was alleged as one of the situations that has generated problems in the use of the Bill of Exchange, since to satisfy the payment of the same only financial resources can be seized, understood by these monetary resources, the monetary income obtained from the accounts receivable and the effects and any other accounts receivable up to covering the amount of the amount owed. The legislation does not include the concept of auction, where the material assets held by the debtor are auctioned until the amount of the sum reflected in the bill is met, this constituting another way of making the payment thereof effective. This limitation has its raison d'être, since in the case of state companies holding an auction with their material assets, they would incur the risk of bankruptcy,being deprived of all protection; in addition, the Mercantile Societies (SA) could be liable to seizure in operations with foreign companies, setting a totally unfavorable precedent for the Cuban economy.
Despite the existence of such problems, the province has not encountered all the difficulties generated by the implementation of the Bill of Exchange in collections, as a result of which its validity in our system is still incipient, tending to increase with the flow through time, which can contribute to perfecting the bases of this credit in our economy.
1.3 Analysis of the behavior of the Bill of Exchange in the province of Camagüey.
Since the bill of exchange began to be used in the entire payment system of the country, companies in the province of Camagüey have not used it thoroughly in their commercial operations, alleging external causes such as not having accounts to operate, and not foreign as the ignorance about the subject, as well as numerous disadvantages in the insertion of said title in the collection system.
Our work in the province was aimed at surveying a number of twenty companies to find out the positive or negative incidence that this instrument has had, the sample taken according to the information provided by the Bank of Credit and Commerce (BANDEC), is representative regarding the number of companies that are currently using it, constituting approximately 80% of the total; This representativeness is not only according to the quantity but also according to the diversity of sectors to which each company belongs.
That is why the results obtained in this survey will be reflected through commented Graphs and Tables.
FIGURE 1.
The categories of Good (B), Regular (R), Bad (M) were determined through five requirements of the correct definition of bill of exchange, among which are:
a) Title Credit value.
b) Pure payment mandate.
c) Obligation to pay in currency and never in kind.
d) Forces to pay when due at the place designated in the title.
e) Payment is to the person designated in the document.
In category B 25% of the total sample was located; 25% is found in R's; and in M, the largest number of companies was concentrated, for 50%.
This information gave us as a result that there is a lack of knowledge about what a bill of exchange is, and the greatest incidents occurred in the requirements regarding the mandate of pure payment (b), the obligation to pay in currency and never in kind (c), the obligation to pay when due at the place designated in title (d), and that the payment be made to the owner reflected in letter (e); being its condition of credit title the most recognized by the entrepreneurs, being indicated by 16 companies. Thus we can conclude that of the essential elements that make up the definition of bill of exchange, only one is of general knowledge, being used daily, so it is not justified that they do not know the requirements of the bill that are very clear and concise, for example the place of payment, the due date,and pay the person designated in the title; elements that are handled on a daily basis in other commercial operations, not being able to express correctly what a bill of exchange is.
FIGURE 2.
The companies surveyed were subdivided by business sectors, with 35% of the total sample including 7 MICONS offices, being the most representative sector. 20% was located in the SIME with a representation of 4 entities, 15% were obtained by the MINAGRI and MINAL sectors integrating the 3 companies, and finally with 5% the Popular Power, MINIL and MINAZ sectors were found constituting as the sample with the fewest companies with 1 each. This division of the companies according to the sector to which they belong gave the possibility of assessing how the use and application of the bill of exchange behaved in each branch, since in the graphs that will be shown below there are data that will be expanded upon adjusting to each sector according to the companies that compose them.
Taking as a date parameter, November 2000 for the beginning of the use and application of the bill of exchange, it was obtained as a result that 30% of the companies started in said month and establishing as a point of comparison the graph referring to the evaluation conceptual of the letter, three of these were located within the category of M (Graph 1); in the month of December, 10% of the companies were found, and in January, 30% of them were already two months behind, placing 4 of them within the category of M (Graph 1); in February, 10% of the entities began to apply the letter, behaving in the same way as in the month of December, and lastly, in March, 4 months behind, 20% of the sample stood, 3 of these being in the category of M (Graph 1).Among the alleged causes of delay as to why they started on that date, there is the ignorance of the bill of exchange, the lack of a currency account until that moment, and the non-acceptance of the bill by investors. We also found as a result of the analysis of the conceptual evaluation and the beginning of the use of the letter, that seven companies out of the ten that are within the category of M began after the implantation of the same, which demonstrated the ignorance that exists regarding the letter corroborating the first cause of delay raised by the businessmen themselves.We also found as a result of the analysis of the conceptual evaluation and the beginning of the use of the letter, that seven companies out of the ten that are within the category of M began after the implantation of the same, which demonstrated the ignorance that exists regarding the letter corroborating the first cause of delay raised by the businessmen themselves.We also found as a result of the analysis of the conceptual evaluation and the beginning of the use of the letter, that seven companies out of the ten that are within the category of M began after the implantation of the same, which demonstrated the ignorance that exists regarding the letter corroborating the first cause of delay raised by the businessmen themselves.
Camagüeyan companies have presented a certain reservation in starting to use it, and for this reason many have not done so and those that have started have not all done so since their use was approved, incorporating a greater number of entities every day into their economic relations, because although The survey was carried out on the basis of companies that use the bill of exchange, many of those visited constitute themselves as acceptors of the document, gaining experience on the subject to begin to release them.
In addition to analyzing the behavior of the beginning of the letter by the companies, the percentage that each entity represented for its sector in each month was verified, showing that in the month of November the most representative sector was that of SIME with 75% of its companies, followed by MINAL with 67% and third place by MICONS with 14%.
In December, only MICONS companies were located for 29%. In January, the MINAGRI sector obtained 100%, the MINIL with 100% and the MICONS with 29%. In February SIME with 25%, MICONS with 14%; and finally in March the MICONS obtained 14%, the MINAL 33% and the People's Power 100%.
PROBLEMS PRESENTED BY COMPANIES
The problems that presented the most incidence according to the analysis were, in the first place, the centralization of foreign currency accounts in some organizations with 95%, this being considered the greatest difficulty in both issuing and accepting bills, since in both cases, the recognized signature, either from the higher organizations in Havana City or their own, but with prior authorization; greatly limiting the autonomy of employers and the speed of the bill of exchange, if for each contract it is necessary to consult the documentation or acceptance thereof. Regarding this, in this year 2001 Resolution 74 was issued, which allows unions to authorize their agencies to accept bills of exchange, without actually solving the problem of centralization.
The second problem was the lack of knowledge and mastery of the letter with 85%, in it the first reason alleged is the lack of information and documentation on the subject, the documents issued by the Central Bank of Cuba (BCC) do not arrive to every single place; in addition to being something new that is used for the first time in our economy and that generates legal consequences of great weight, which precisely because they do not know the matter, can be incurred; It is true that there is not yet a depth of knowledge about the bill of exchange, but it is necessary to pay a greater interest in overcoming it from all points of view, a professional, whatever the branch, has to absorb or obtain the information offered; Only in this way this credit will work correctly in the sector.
The third problem of greater incidence was the complexity in the process established with the Banks for the collection of a letter with 75%, since the greatest difficulty is given that there is no communication network between the different bank branches and the services only They can be provided if there is a current account contract between the client and the Bank. The existing network so far is between a Bank and its branches, making this much more cumbersome in the case of clients from different provinces who present their bank account in their respective locality. In addition, it is proposed by the businessmen that the commissions charged for the collection management by the Banks are very high.
The greatest advantages presented in the use of the letter were firstly the offer by the bank of numerous services related to the letter that facilitate the entire process with 95%, this being somewhat contradictory, as it happens that some entrepreneurs who have requested this service has been denied, for not presenting the Bank branches where it is requested, or for rejecting the request, as this is optional for the Bank according to the commissions with interest or earnings that may be obtained.
The second advantage is the mandatory reconciliation of debts in the acceptance process, including the previous ones with 90%, reflecting the above in Resolution No. 64/00 in its transitional provision for new payment commitments greater than $ 5,000 CUP or USD including past debts. This was recognized by the vast majority of companies as it obviously facilitates reducing the chain of non-payments existing in relationships, favoring the new payment commitment, the obligation inherent in the bill, from accounts receivable to receivables.
Third, it allows to go to the executive route in the courts with a greater procedural speed with the same percentage as the second advantage, this executive process differs precisely from the ordinary one in its speed, since there is no phase of providing evidence and in addition, its terms are shorter, 30 days in general, although it may conclude before this, forcing the sentence to immediate payment.
The least significant assumptions were that the OACE, the Unions of Companies and Business Groups that sign as guarantors using the State budget, and that the Notarial Rates are very high, each with 30%. The first because it refers to organizations that do not manage the state budget and therefore its link with them is more limited, and the second is that they have made almost no protests on the one hand and, on the other, that the notary fees have suffered variations. Resolution No. 125 of the MINJUS that regulates the notary fees collects prices of up to $ 350.00 USD as the case may be, at the moment this regulation is paralyzed because it is subject to a review process, and the notary fees in USD are governed by the Resolution No. 130 of the MINJUS that includes the reference for protests in CUP,with a fixed value of $ 50.00 CUP for any type of operation.
From the information obtained from the relationship between the evaluation of the concept and the factors that are problems or advantages for the letter, it was effectively shown that 50% of the companies that did not know how to define the bill of exchange were within the category of M coinciding in its entirety by pointing out as problems the little knowledge and mastery of it and it represented the second with the highest incidence among those marked, corroborating the existing ignorance on the subject.
Respondents also reported other problems such as:
1. Little training for cadres and staff at all levels of management (Ministry)
2. Auditors know very little about the subject and do not require the use of print in companies.
3. Little demand in compliance with resolution 56 and 64 of the year 2000 alleging little liquidity, greatly influencing the upper levels of management to grant the merchandise even knowing that it will not be subsequently supported by a bill of exchange.
4. The limitation of documenting only with bill of exchange operations when a commercial credit is granted and is more than $ 5,000 CUP or USD.
5. FINATUR SA is charging a commission for collection management for the payment to the drafters of the accounts of the drawees who are their clients.
6. The Popular Savings Bank raised as another problem that is affecting the use of the bill of exchange that entities are not endorsing operations greater than $ 50,000.00 USD or CUP in the corresponding Financial Institutions as provided in the Provision First Special Resolution 56/00.
The advantage was also presented that the bill of exchange is a mechanism that will solve the chain of defaults and that educates the businessman to manage the resources that he really has.
FIGURE 3.
Regarding the use of payment instruments, the most preferred is the Check with 55%, alleging reasons such as the following: in the case of the certificate, it has the endorsement of the bank that approves it, in management it always has the bank's support, either against a deposit (debit) or against a credit that it itself grants. The nominatives allow greater control over the financial availability at the moment without having the account statement, and it also applies to all payments over $ 50.00; It has great speed and efficiency, are less complicated and are effective when presented to the Bank.
The reasons stated in the bill of exchange were its speed and efficiency, greater speed in collections and a certainty in specifying the date on which the financial resources will be available; It is a greater payment commitment, offers great facilities and guarantees and would be ideal if it were to comply with the provisions of the subjects involved in the investment process. This instrument was selected by 35% of the sample.
Both the collection order and the bank transfer obtained a level of preference of 5%, considering the first that allows for quick collection of charges and the second that has speed in execution and greater security.
The other payment instruments were not preferred by entrepreneurs.
The information offered by the analysis of this graph with that of the problems and advantages of the letter shows that 70% see in the use of the bill of exchange more advantages than problems, preferring to use it in their commercial operations only 60%, and the other half prefers to use other payment instruments; 15% see more problems than advantages, and the same percentage see the same problems as advantages. From the analysis carried out between these two previous ones and the beginning of the use of the letter, it was shown that the four companies that began to use it more recently (March 2001) pose as fundamental problems the poor knowledge of the letter and the centralization of accounts in currency which in turn coincides with its causes of delay,in addition to not having in their preference the use of the letter as a means of payment, all pointing to the check.
The preference of the check over all payment instruments is given in that this is a title that has been used by all entrepreneurs at different levels in all their transactions over the years; being considered the only means of payment when funds are not available at the time to do so in cash or when the amount of the debt does not exceed the sum of fifty pesos. In addition, the check offers the advantage of being able to be cashed at any time that it is needed by presenting it to the debtor's bank; There are also numerous modalities of which some provide security and support for collection, for this reason, since it is mandatory to use another title such as the letter without having full knowledge and practice, the businessmen have some reserve with their use.
Conclusions
According to the results obtained in the investigation, the following conclusions could be reached:
1. The Bill of Exchange is a value title of great importance that is perfected every day, to achieve its correct use and understanding.
2. The direct exchange action against the acceptor does not require a prior protest, that is, there is no established term for the party to demand payment from the court in an executive proceeding; However, in our country this is not valid because Instruction 160 of the TSP is in contradiction with what is regulated in Article 486, subsection 5 of the LPCAL, and the solution used by the courts to this problem is to carry out a recognition of the debt before of the eight working days established to carry out the protest, the letter being seen then as an execution title.
3. The existing bill of exchange model, recommended by the BCC, is omitted regarding the data to be completed by the drawee; because if he does not domicile the letter and decides to make the payment, it is not collected in which place it would be made.
4. The Cc does not include some of the matters related to the letter, and as an example there is the causal extra-exchange action against the person who made the payment mandate or against whom the letter endorsement is received.
5. The laws that regulate the bill of exchange in our country (Cc, R-56 and 64 of the year 2000 of the BCC) present drafting problems that generate difficulties in the application of the bill in trade relations, a product that exists an inadequate interpretation of these laws.
6. Although the BCC recommends using the way of turning the letter "At the order of the drawer itself", the other ways of turning the letter can be used and in this sense it is considered feasible to achieve discipline in collections and payments the use of the form "Against the drawer himself"; whenever the debtor is obliged to turn the letter, in the contract established between the parties or in the conciliation deed.
7. The bill of exchange as a commercial act, may be used in all types of operations even when both parties are not merchants and not only in Purchase, Sale and Service Provision contracts as recommended by the BCC.
8. There are limitations in the R-56 and 64 of the year 2000 of the BCC regarding the amount of documentation of transactions with letter, as a result of which this must be greater than $ 5,000 CUP or USD both in contracts that require the existence of a commercial credit as in debt reconciliations, and in these cases it is mandatory. Those operations that do not meet these requirements do not have a legal backing that requires the use of the letter, so the entrepreneur is left unprotected, with a high percentage of operations being carried out less than $ 5,000 CUP or USD, or not reaching commercial credit offered, for example: in Service Provision contracts, you are required to pay 30 days.
9. There is a lack of knowledge about what is the bill of exchange, both conceptual and legal, despite having known elements that are handled daily in business operations.
10. The centralization of accounts in foreign currency limits the creativity and capacity of Cuban entrepreneurs, contradicting the Bases of Business Improvement (Section XI, section 1.1 Art.17) that enables each company to be granted a certain autonomy to manage your funds; It is also a brake on the use of the letter as a means of payment, being in some cases mandatory to use the title and this is reflected later in the misuse of the instrument by businessmen when drafting or accepting letters not being authorized or not having liquidity. Despite Resolution 74/01 being issued, this brake continues because the accounts are still centralized.
11. The bill of exchange does not have a high level of preference among businessmen, most of whom prefer to use the check as a means of payment because the bill is in an incipient stage of implementation; On the other hand, the check has been the payment instrument used at different levels in transactions, knowing the advantages it offers, such as cashing in at any time it is needed, in addition to allowing greater control over financial availability at the time.
12. Banks offer numerous services related to the letter that facilitate the entire process. But there are Banking institutions (BIZCA) that make collection management impossible.
recommendations
Due to the imperfections that the letter still presents in the process of insertion in the country's financial-credit relations, it is recommended for its best operation:
- Analyze the contradiction between Instruction 160 of the TSP and Art. 486 subsection 5 of the LPCAL so that the person who holds the bill at the time of expiration, is not deprived of the direct action that corresponds to the court when the drawee It is an acceptor. Rework the existing bill of exchange model recommended by the BCC, for not presenting within the data collected by the legal address of the drawee in the event that the bill is not domiciled and the payment is made. the current laws that regulate the letter in order to clarify some concepts and omissions that appear in them to achieve a correct interpretation of the Law and its adaptation to the problems faced by the subjects authorized to use it today.Use the way of turning the letter "Against the drawer himself", since it has the advantage that the drawee-drawer, debtor of the obligation, when turning the letter is obliged to accept it and therefore pay the same, so It achieves a better discipline in collections and payments.Expanding the scope of the letter, since having been equated with a commercial act, it can be used in any type of operation that has this character, proving in practice that its framework is much more Analyze the solution to the problem of centralization of currency accounts that currently affects the operation of the bill, considering the possibility of its decentralization by the vast majority of entities and officials. detailed information on the bill of exchange,from the theoretical and legal procedural point of view, so that businessmen obtain a general perspective on the matter, mainly in terms of the laws that regulate it. Establish a Computer Network that connects all the Banks of the System to be able to carry out all kinds of banking operation in any part of the country, and thus improve existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a point of Based on the analysis carried out in the provinces of Camagüey and Havana City, create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.so that businessmen obtain a general perspective on the matter, mainly in terms of the laws that regulate it. Establish a Computer Network that connects all the Banks of the System to be able to carry out all kinds of banking operations in any part of the country, and thus improve the existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a starting point the analysis carried out in the provinces of Camagüey and Havana City: Create a mechanism with the Banks to obtain the Resolutions of authorized signatures, by controlling the authorizations of their clients.so that businessmen obtain a general perspective on the matter, mainly in terms of the laws that regulate it. Establish a Computer Network that connects all the Banks of the System to be able to carry out all kinds of banking operations in any part of the country, and thus improve the existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a starting point the analysis carried out in the provinces of Camagüey and Havana City: Create a mechanism with the Banks to obtain the Resolutions of authorized signatures, by controlling the authorizations of their clients.mainly in terms of the laws that regulate it. Establish a Computer Network that connects all the Banks of the System to be able to carry out all kinds of banking operations in any part of the country, and thus perfect existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a starting point the analysis carried out in the provinces of Camagüey and Havana City. Create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.mainly in terms of the laws that regulate it. Establish a Computer Network that connects all the Banks of the System to be able to carry out all kinds of banking operations in any part of the country, and thus perfect existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a starting point the analysis carried out in the provinces of Camagüey and Havana City. Create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.and thus improve the existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a starting point the analysis carried out in the provinces of Camagüey and Ciudad Habana. Create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.and thus improve the existing banking services. Carry out a comparative study with all the provinces of the country, to know the difficulties that have arisen and obtain data that lead to the perfection of the title, taking as a starting point the analysis carried out in the provinces of Camagüey and Ciudad Habana. Create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.Create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.Create a mechanism with the Banks to obtain the Resolutions of authorized firms, by controlling the authorizations of their clients.
Application:
The work is being applied in the province's Banco de Crédito y Comercio and in the province's Banco Popular de Ahorro. It is also a job that is being used by jurists as study material regarding the subject; In addition, the work to collect information from Havana City is used for information material from jurists and economics of that province. Camaguey companies are also using it to obtain title information.
With it, an article for postgraduate courses was prepared and it will also be used on the website of the subject of Commercial Law currently in preparation.
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