The current banking law in its Art. 221 Inc. 24, contains in a special way the power that multiple banking companies have to issue this security, so that banking and financial companies can do so freely, while other companies of the financial system must have at least a module 2 company rating.
I Regulatory Background
In the year 1970, the government of that time issued Decree Law 18275 regulating the so-called money order market in foreign currency, prohibiting individuals and legal entities residing in the country to maintain and make deposits in foreign currency in banks and other institutions. of the country and / or abroad. likewise, these people were prohibited from maintaining and contracting credits and entering into contracts in foreign currency that were to be executed within the territory of the republic.
Within the process of changing economic policy, Decree Law 22038 is issued, which initiates a process of liberalization of the exchange market, which creates the so-called "bank certificates in foreign currency", the characteristics of which are close to what is indicated in the current securities law. values of that time (law 16587).
It is interesting to comment on one of the recitals of the aforementioned decree law establishing the purpose of promoting savings for foreign residents, making a difference with the first phase, with a clear leftist tendency, of the regime in charge of General Juan Velasco Alvarado, and it is that, during this second stage, as Castellares correctly points out, it sought to recover the lost confidence of foreign savers during the Velasco phase.
Ricardo Beaumont Callirgos / Rolando Castellares Aguilar, In His Book Comments On The New Securities Title Law, Second Edition October 2000, maintain that the CBME foreign currency bank certificate is a Peruvian creation value title and that it responded to the need to to regain the lost confidence of savers in the banking system, as strict control over exchange rates was established during the military government of the 1970s and private individuals were prohibited from owning foreign currency.
The bank certificate in foreign currency is regulated in articles 217 to 222 of the new securities law (Law No. 27287) and the bank certificate in national currency by article 223, which states that they are applicable as soon as.
II. Legal nature
The bank certificate is an unnamed security whose scope is literally determined in the document itself.
The ownership of the cartular right does not derive from the possession of the document but from the transmission of the obligation incorporated in it. Enforcement No. 60- File No. 209-92.
The bank certificate is a security whose main purpose is to allow companies in the national financial system to obtain sources of financing, by raising public funds.
Example.
A natural or legal person delivers an amount of money in national or foreign currency to a company in the financial system, receiving in exchange for it the title value called bank certificate.
This security can be bearer or to the order, it contains an obligation of payment in charge of the issuing (financial) company, the same that will be required once the term established in the bank certificate has elapsed.
These securities can only be issued by companies of the national financial system duly authorized by the national superintendency of banking and insurance. likewise, they are characterized by being issued against the receipt of the amount represented by said exchange document, so it is necessary that the receipt of money by the (financial) company.
This security must not be issued against credits, since the person is required to deposit the money in the cashier of the issuing company in advance for the amount that the security must represent. Arts. 217 and 218 LTV
III. Subjects that Interveners
a) The issuer, which is the company of the financial system that, upon receiving the financing, issues the, becoming the principal liable to pay its amount on the due date.
b) The beneficiary or holder, who is the person who finances the issuer, thereby being entitled to require the issuing company to deliver and subsequently pay the security.
Additionally they can participate:
a) The guarantor, that is, who ensures compliance with the obligation contained in the security.
b) The endorser, that is, the holder who chooses to transfer the bank certificate via endorsement, that is, the holder who chooses to transfer the bank certificate via endorsement
c) The endorser, that is, the person who acquires the security by endorsement.
IV. Essential Formal Requirements
The bank certificate containing:
a) The denomination of the bank certificate and the indication of whether it is a security expressed in “foreign currency” or “national currency”
b) Place and date of issue
c) If bank certificates have been issued to the bearer, such condition must be indicated, that is, that payments will be made to whoever holds the security. on the other hand, if bank certificates have been issued to order, the name of the person to whom they are issued must be indicated.
d) The indication of the amount they represent, which must be expressed in a currency other than the national currency (US dollars and some other); and in nuevos soles, in the case of bank certificates in national currency.
e) The term of validity of the security or its expiration date, which may not be more than one year after it has been issued, and it must also be indicated whether said term is renewable or not.
f) Place of payment, that is, the city, square or town where the payment will be made. if the place of payment is not indicated, it will be understood that the bank certificate is payable in any office of the issuing company within the national territory.
g) The conditions for their early redemption, if possible.
h) Name of the issuing company and the signature of the representative. Likewise, bank certificates must only be issued on security paper, in accordance with the provisions of the Superintendency of Banking and Insurance and each issuing company. LTV 218, 219 and 221.
V. Amount
In the case of bank certificates in foreign currency, the amount represented by the security must not be less than one thousand US dollars or its equivalent in other currencies. In the case of bank certificates in national currency, the amount stated must not be less than thousand new soles. on the other hand, the amount may generate the compensatory interest foreseen in the bank certificates from the date of their issue until their maturity. It may be at fixed or variable rates. LTV Art. 218 and 223.
SAW. Expiration
Bank certificates expire only on the fixed date, that is, the exchange document must indicate which day the payment of the security amount will be required. However, this maturity term cannot exceed one year from when the security is issued for said reason, if it has not been expressly stated in the security which is its expiration date, it must be understood that this is one year, counted from the date of issue. ltv art. 218.
Can the expiration date of the bank certificate be renewed?
The term of maturity of bank certificates in national or foreign currency may be renewed if it has been so provided in the security or, if the contrary has not been expressly stated. That is, if no indication is made, it must be understood that the term is renewable indefinitely and successively, for the same period indicated in the security, with the capitalization of its interests.
If the bank certificate expressly states that its term is not renewable, it will only generate the interest that would have been agreed from the date of issue to the date of expiration.
VII. Transfer
How are bank certificates transferred?
If the bank certificate is in bearer, your transfer will operate by simple delivery or tradition. But if it were to order, the transfer of the bank certificate will result in endorsement. either privately or through centralized trading mechanisms (stock market wheel)
However, the effects of the transfer of bank certificates will be similar to those of transfer of rights, given that by law, the transfer of these documents is exempt from the joint and several liability that characterizes the endorsement of securities.
This means that only the issuing company and its guarantors will be the only ones liable for payment. Not being the endorsers of the security. therefore, only the direct exchange action will proceed, but not the return action. LTV Art. 218 and 222.
VIII. Exercise of Exchange Actions
Is protest required to exercise direct exchange action?
To exercise the direct exchange action procedurally and for the bank certificate to have executive merit, no protest or substitute formality is required. therefore, for the holder to be able to exercise said exchange action, only the expiration of the term and the breach of the obligation will suffice.
As we have already indicated, only the exchange action will proceed against the financial company issuing the bank certificate and its eventual guarantors, because the subsequent endorsers of the security do not become joint and several obligors on their way back. LTV Art. 22.
IX. Legislation
A) Of the bank certificate in foreign currency
In the Peruvian legal system, the bank certificate in foreign currency (considered as the beginning of the dollarization of the banking system) was regulated for the first time with Decree Law No. 22038; in the government of Gral. Francisco Morales Bermúdez, during the second stage of the military regime.
It is interesting to comment on one of the recitals of the aforementioned decree law where the purpose of promoting savings for foreign residents is established, making a difference with the first phase, with a clear leftist tendency, of the regime in charge of General Juan Velasco Alvarado (even going so far as to deprive them of their savings, prohibiting the possession and contracting in foreign currency (typifying it as a crime of possession - unauthorized possession of foreign currency), and it is that, during this second stage, as Castilians well points out, it sought to regain confidence loss of foreign savers during the Velasquista phase.
Since then it has been welcomed among savers in foreign currency, mainly because it is a value issued to the bearer, to the order and in hard currency other than the national one, and whose interests are exempt from income tax, from its creation to date.
Initially only banks could issue them, later with D. Leg. 301 financial companies were allowed to issue them, maintaining their name that had already become widespread and accepted in the market.
The current banking law in its Art. 221 Inc. 24, contains in a special way the power that multiple banking companies have to issue this security, so that banking and financial companies can do so freely, while other companies of the financial system must have at least a module 2 company rating.
The bank certificate in foreign currency is regulated in articles 217 to 222 of the new securities law (Law No. 27287) and the bank certificate in national currency by article 223, which states that the rules applicable to it are applicable regulate the foreign currency certificate. With this type of securities, in addition, we bet on the liquidity of financial institutions (that they have the largest possible amount of capital, be it in national or foreign currency).
For greater security, the support to be used must consist of security paper. not by the nomination of the certificate, without or by the nature of this security, this support must be materialized, since, otherwise, it would not be possible to issue it to the order or to the bearer. perhaps in the future its dematerialization (virtualization) will be achieved, hand in hand with electronic endorsement, which would expand its use and advantages. Future that does not seem to be very far.
That it is not only a payment order but as its name says, it has the virtue of certifying, read attest or accredit, the real existence of a quantity of money (not a quantity of goods such as the certificate of deposit). therefore, it is not possible for the overdraft to enter in this security. Nor is it necessary to open a checking account in order to issue it.
The expiration date may be omitted, but not the issue date.
The nature of the order makes it possible to identify the beneficiary of the security. Being the endorsement the ideal mode of transmission.
Casatory Sentence: "the ownership of the right to a card does not derive from the possession of the document but from the transmission of the obligation incorporated in it, excluding bad faith and requiring verification of the right…".
The liquidity of the banks is benefited with this type of securities.
The aim is to give circulation to capital in foreign currency and that it does not become numb in bank accounts.
After the expiration of the term and having existed, the holder of the certificate can make it effective without having to do the formalities of the protest. The conditions for its early redemption are referred to the payment of the security, before the term of its expiration, must be stated in special clauses (in accordance with article 48 of law nº 27287) and thus give the respective evidentiary character.
The same preventive regulation (and that suggests the verification of certain requirements) that exists with bank certificates in foreign currency does not exist for the national currency, within the regime of bank certificates.
It can be offered by the beneficiaries of any customs regime or tax division.
The amounts that said certificate are immobilized for a peremptory term by Sunat.
It has cancellation value for the payment of the obligations assumed by the tax debtor.
Article 217.- bank certificate of foreign currency
217.1 the bank certificate in foreign currency can be issued only by companies of the national financial system authorized for it according to the law of the matter.
217.2 its issuance proceeds only against receipt by the issuing company of the foreign currency it represents under the conditions expressed in the same title. Matches: Lsf Y Ss. 221 Inc. 24. Background: D. L 22038. 2.
Bank certificates in foreign currency are only issued by companies of the national financial system against receipt of the amount represented by said document. It is a condition then to receive the money for its emission, they cannot be issued against credits; the cash deposit of the currency that represents the title is required. Although some laws identify it as a term deposit, the amount received represents a credit obligation in favor of the holder of the title.
Deposits made in banks find a way to transfer in the bank certificate. These securities respond to the need to capture savings from the public and documented in such a way that it can circulate or remain in guarantee and solvency of the debtor in a parallel credit operation. their attractiveness is given by the tax regime that does not affect them with the income, and on the other hand by the form of its issuance, which can be to the bearer, which allows the circulation of the title.
characteristics
Article 218º.- characteristics
The bank certificate in foreign currency has the following characteristics:
a) It is issued, without distinction, to the bearer or to the order of a given person;
b) The payment obligation that it contains must be fulfilled by its issuer, in the same foreign currency that the title expresses, without requiring the clause referred to in article 50;
c) Its amount must not be less than one thousand United States dollars or its equivalent in other foreign currencies;
d) The term for payment must not exceed 1 (one) year, counted from the date of issue;
e) They can be freely negotiated by simple delivery or, where appropriate, by endorsement, either privately or through the corresponding centralized negotiation mechanisms;
f) The amount it represents may generate the compensatory interest indicated in the same title, from its issue to its maturity. These interest rates may be at a fixed or variable rate; and
g) They must be issued on security paper. Concordances: Ltv.22, 50. Cc. 1242, 1248. D. Leg. 668. 5. Background: DL 22038. 1.
Certificates of deposit in foreign currency are titles that contain a promise of payment of credit content, and must comply with the characteristics indicated in this article, such as being issued to the bearer, or to the order of a certain person, by a company in the financial system national; they may be for a specified term and not more than one year from their date of issue; and they can be freely negotiated, by means of their simple delivery or, where appropriate, by endorsement, either privately or through centralized negotiation mechanisms.
Their transmission is carried out with the effects of the assignment of credits, since as indicated in article 222, these titles are not subject to joint and several liability of the securities, the issuing company and its guarantors being the only ones liable for their payment.
The minimum amount of the title is one thousand dollars and must be paid in the same currency, without it being necessary to expressly agree on the method of payment under article 50 of the securities law.
The title can be classified as short term because the inc. d) indicates that the term for its payment cannot exceed one year from the date of its issue.
It can be freely negotiated; if it is a title to order, it is transferred through the endorsement and if it is to the bearer for delivery (item e), the negotiation can be done privately or through centralized negotiation mechanisms such as stock exchanges. values.
It is admitted that these securities accrue compensatory interest, and these may be fixed or variable, the first will remain immovable during the life of the title, the second will be subject to variation from time to time as stipulated and will be set at each opportunity by the issuer according to market conditions, an aspect that must be specified in the title (in.c. f).
In order to avoid or make counterfeiting of this type of document more difficult, the inc. g) indicates that they must be issued in security papers.
Content
Article 219º.- Contents of the bank certificate of foreign currency
The foreign currency bank certificate must contain:
a) The denomination of bank certificate of foreign currency;
b) The place and date of its issue;
c) In the titles issued to the bearer, the indication that their payment will be made to the bearer. in those issued to order, the name of the person to whom it is issued;
d) The indication of its amount, which must be expressed in a currency other than the national one;
e) The term of its validity or its expiration date, which may not be greater than 1 (one) year, from the date of its issue; as well as whether it is renewable or not;
f) The place of payment;
g) The conditions for their early redemption, if any; and (*)
h) The name of the issuing company and the signature of its representative. Matches: Ltv. 22.
Article 219 specifies the minimum requirements that the title must contain.
The name must be indicated, that is, it mentions the words "bank certificate in foreign currency"; the place and date of issue, which will determine the beginning of the calculation of the term in the event that the fixed date of maturity has not been indicated.
It must also be specified whether the security is renewable or not upon maturity. in the absence of an indication, the issuer proceeds with its automatic renewal when it expires, for the period originally indicated.
The name of the person to whom the document is issued must be specified; There is no limitation for drafting in the name of a natural person or legal entity, who may freely endorse, specifying their official identity document. If it is a bearer title, the credit right contained in the title is transmitted with its delivery, and whoever claims to be charged must identify himself to the issuing entity.
The endorsement of the document before the issuing entity constitutes proof of having received the funds indicated in the title, without prejudice to the receipt being issued separately (Inc. c).
In the case of the certificate in foreign currency, the amount must be expressed in a currency other than the national one, and the payment of the title is made in said currency, the rules on the payment of the title in national currency not being applicable at the exchange rate in force at the expiration date, or the payment date, according to the norms of the securities law.
In the case of discrepancy in the amount, the lower amount must always prevail, as indicated in article 5 of the securities law.
The omission in the indication of the reference currency damages the title. Given the formal nature of the same, we dare not affirm that because this title refers to a minimum issue amount, equivalent to that of the US dollar currency, we should presume that the discrepancy is resolved by reference to said foreign currency. (Inc. d).
The expiration date cannot be set for a period greater than one year (Inc. e), the excess in the way of setting the term damages the title and detracts from the exchange merit.
As for the place of payment (inc. F), this is not essential, its omission gives rise to the application of art. 221.
In the event that among the conditions of the issue an early redemption is considered, the payment of the title, before the indicated maturity, through mechanisms such as the draw requires that it be a matter of specification (Inc. j).
The signature of the representative of the financial institution (Inc. h) is an indispensable requirement in the issuance of the title, and in this case the name of the representative (s) of the legal entity involved in the title must be entered, bearing in mind the provisions of the article 6.4 of the law (Supra 9.3).
Expiration
Article 220.- Maturity
220.1 The expiration of the foreign currency bank certificate must be set at a fixed date.
220.2 In the absence of an express indication of maturity, it will be understood to expire one year from the date of issue.
220.3 If it is not stated that the expiration period is renewable or not, it will be understood that it is renewable indefinitely and successively, for the same period originally indicated in the title, with capitalization of your interests, if applicable.
220.4 When the bank certificate of foreign currency indicates that its term is not renewable, they will generate the interests that have been agreed, only until the expiration date. The same rule is applicable in the cases indicated in the second paragraph of this article. Matches: Cc. 1242, 1248. Lsf Y ss. 221 Inc. 24. Background: DL 22038. 6.
The maturity is a determining fact in the securities, therefore the law, in order not to lose the character of the title, specifies that the only way to set the maturity is on a fixed date, but that due to the omission in the express indication of this As a condition, the title is presumed to expire within one year from the date of issue. The title is not harmed, but indirectly it is being admitted before the silence, that the title expires in days. The title is damaged if two different expiration dates are indicated.
When the bank certificate indicates that its term is not renewable, they will generate the interests that have been agreed, only until the date of their maturity. If it is not stated that the maturity term is renewable, it will be understood that it is renewable indefinitely and successively, for the same term originally indicated in the title, and the interest will be capitalized at maturity and incorporated in the renewed title.
The holder of the title will exercise his legitimate right to cash, accrediting himself as its owner with the chain of endorsements, or as bearer of it.
Nothing prejudices the renewals or extensions from their expiration, and the extension clause may be applied in any case at the discretion of the holder. Renewals are indefinite and successive at the holder's will for a period of one year, if there is no indication in this regard, and so on.
Place of payment
Article 221º.- Place of payment
If the place of payment is not indicated, it will be understood that it is payable at any office of the issuing company within the republic. Matches: Cc. 1206.
The place of payment is not an essential requirement for the issuance of the title, so much so that the law states that, although the place of payment must be indicated, if it were not, the title will be paid at any office of the issuing company, within of the Republic.
Exchange Rate Action
Article 222º.- Exercise of the exchange action
222.1 For the exercise of the exchange action that corresponds to the issuing company, as well as to have executive merit, the foreign currency bank certificate does not require protest, nor the substitute formality.
222.2 The endorsers of the bank certificate of foreign currency to the order are not subject to the joint and several liability referred to in article 11, the issuing company and its guarantors being the only ones obliged to pay it. Matches: Ltv. 11.90. DC. 1183.
Regarding the liberation of the protest or substitute formality, it is justified since it is about titles issued by companies of the financial system; In the case of substitute formality, it would be up to these companies to leave the record that they have not been able to pay, which could mean obstacles to obtaining them.
On the other hand, these titles are of massive emission and can be traded through the centralized negotiation mechanisms, for which the lack of payment would give rise to a significant number of protests.
As for those obliged to pay, only the issuing financial company of the title will be, and the guarantor, if it exists, the endorsers not being subject to the joint and several liability referred to in art. 11 of the law (supra 14).
Without a doubt, the failure to pay the certificate will mean a serious problem for the issuing company, reflecting a crisis that may possibly lead to its liquidation. consequently, this breach determines that the exchange action can be initiated without further process.
X. Conditions for the bank certificate in foreign currency at a local bank
It is a value issued by the bank to the bearer against delivery of cash.
Title value in dollars issued by the bank against delivery of cash. The certificate can be issued to the bearer or to the order and has many advantages for you:
- Negotiable in Peru and abroad. Use it as a means of payment and savings. Get preferential interest rates, which are guaranteed until the certificate expires. Capitalize interest on the same certificate or deposit it in a checking, savings or master account, upon maturity or cancellation. Acquire it and buy it in any of our offices nationwide. Credit facilities by serving as credit guarantee.
Requirements
• Present a copy and original of your identity document.
• Open it with a minimum amount of US $ 5,000
• Do not present payment problems in our bank or in another bank of the financial system.
B) of the bank certificate in national currency
Article 223.- National currency bank certificate
Under the same provisions contained in the previous title, the companies of the national financial system authorized to raise funds from the public, may issue national currency bank certificates, the prescriptions indicated for foreign currency bank certificates being applicable, as appropriate, with The exception is that they must be expressed and paid in national currency and their amount must not be less than one thousand nuevos soles.
This certificate has been created by the current securities law. it must meet the characteristics and content of the foreign currency certificate. the provisions applicable to the latter are also applicable to it.
The difference is given in the currency of the issue, which must be national, with a minimum amount of one thousand nuevos soles.
Bibliography
- "Informative Commercial Law" Magazine. Knight B. Set. 2004 nº 550
- Beaumont Callirgos, Ricardo Y Castelares Aguilar, Rolando. Commentary To The Securities Law. Edit. Legal Gazette. Peru. 2000
- Hundskopf, Excebio. Quick Guide Of Questions And Answers. New Securities Law. 300 Key Questions And Your Answers. Edit. Legal Gazette. Peru. 2000.
- Oyarse Cruz, Javier. Customs Guarantees. Customs Tax Readings.
- Melquíades Castillo. Monetary and Banking Law- Second Edition.
- Figueroa Bustamante, Hernán “Banking Law - Financial And Monetary System And Securities Title. And Monetary And Securities Title ”.
