The topic of Credit Cards is a current topic and very close to all, many people use these cards daily.
The objective of this work is to make known everything related to credit cards and the procedures to acquire them, as well as everything related to the Contract for Adhesion to be linked to a Credit Card.
The Credit Card is at the same time a credit instrument and a multiplying factor of sales, and therefore, of production, work and wealth.
Through it, the Consumer significantly simplifies their operations, since the card replaces the delivery of cash and in turn constitutes an important credit instrument to the extent that the fulfillment of monetary obligations differs, since it generally does not require a prior providing funds.
It is common for us to immediately associate "Credit Card" with the plastic card that has a magnetic strip, which allows us to access the possibility of deferring the payment of the products or services we purchase.
However, the Credit Card is more than the plastic card that we know, it implies a set of legal relationships and concepts that we will analyze below.
The Credit Card is a credit instrument that allows deferring the fulfillment of the monetary obligations assumed with its sole presentation, without the need to previously provision funds to the entity that assumes the debt, which are generally Banks or another company of the Financial System.
I. HISTORICAL BACKGROUND
There are various positions regarding the historical origin of the credit card. Some authors point out that the credit card originated in the United States of America, the product of the idea of a small nucleus but economically powerful private club of associates.
Other authors such as Sarmiento Ricausti Hernando, point out that the credit card dates back to European countries, such as France, England and Germany.
From the concepts, concerning the origin of the credit card, the position that the beginning of the life of the credit card begins with that of the North American Diner's Club has been generalized. From there it spread to other countries.
At the beginning of the present century, a credit card was used in some states of the North American country that authorized the holder to use the lodging in any of the hotels that made up the hotel chain; and that back in 1920, the Texaco and Esso gas station companies gave out credit cards for the acquisition of products whose use was disappearing due to wartime rationing reasons. However, later on, some railway companies begin to deliver them, the custom being extended to airlines.
In the United States of America, the following credit acts are known that have been accepted in various countries, taking them as paradigms:
to. "The Consumer Cards" are those for the purchase of certain goods.
b. "All Purpose Credit Cards" are those intended for the acquisition of all kinds of goods and services.
c. "Credit and entertainment" are those viable for international use.
d. "Change Account" is made up of those referring to the opening of credits.
In 1949 the Diner's Club was founded, originally for the specific purpose of paying in restaurants, later it was extended to all kinds of acquisitions, bringing together millions of clients and companies, with worldwide diffusion.
Then the "American Express" appears, later the Banks are dedicated to the issuance of credit cards, standing out in this fact, the "Bank of America" and the "Chase Maniatan Bank" of New York. Proto understands that profitability is a function of the mass of customers, and banking associations are created to spread the same card: the “Bankeamericard” with 3,500 member banks and the “Inrbenke Association” emerge.
Credit cards appeared in Spain in the mid-1960s, and the associative phenomenon that we have indicated occurred immediately: the 4B card emerged, backed by the Central, Banesto, Hispano American and Santander banks. The Interbanke Card was distributed by the Catalan Bank.
In May 1979, the existence of 4,000,000 cards was estimated, a figure that is possibly tripled today, the contribution being 150 cards for every thousand inhabitants.
The most widespread are: The Visa, created in 1958 in the USA by the Bank of America; It has 7,000,000 users in Spain and allows payment of purchases and withdrawals of money of certain limits; the Diner's Club, launched in the North American market in 1950 by Rockefeller and a group of businessmen; the American Express, also created in 1950 in the United States by Henry Wells, and whose first purpose was transportation.
In 1967, Diners Club was the first credit card to arrive in Peru, to satisfy market demands, establishing the Diners Club Peru franchise.
Currently in Peru, American Express, Visa, Master Card and Diners are accepted, although not all establishments carry out transactions with all the cards.
In Peru, the credit card was initially regulated by Resolution No. 355-93-SBS, published in the Official Gazette "El Peruano" on July 24, 1993; then it was governed by Resolution No. 295-95-SBS published in the Official Gazette "El Peruano" on April 17, 1995. Currently it is governed by Resolution 589 No. 271-2000 of April 14, 2000, published on April 23, April 2000.
II. DEFINITION
As for its definition there are several criteria, we will present some:
According to Alfonso E. Vitale, the credit card “is an instrument issued by virtue of an agreement according to which the issuer grants the account holder the power to obtain credit from the same issuer or from another person in the purchase or lease of goods or services, obtaining cash advances or in any other operation carried out by its legitimate carrier with the same issuer, correspondent institute or in an affiliated establishment and by transmitting the information contained therein orally, in writing.
According to Sarmiento Ricausti, the credit card is the contract by which the credit institution (bank or financial institution), legal entity, grants a revolving credit, of a specified amount and term, indefinitely extendable, to a natural person in order to this one uses it in affiliated establishments.
For Cogorno, “it is very difficult to give a precise definition of the credit card, which we could try to outline in the following way: it is a complex contract with its own characteristics that establishes a triangular relationship between a buyer, a seller and a financial institution, enabling the first, the acquisition of goods and services offered by the second, through the prior promise made to the issuing entity to pay the price of u purchases within a period given by the latter, which will take over the debt by immediately paying the amount to the seller after deduction of the commissions that have been stipulated between both for approaching the demand.
Argeri, for its part, argues that it is “the commercial contract by which a specialized company -banking or financial- agrees with another -the client- in the opening of a certain loan, so that the client, exhibiting the credit instrument that It is provided -credit card- and proving your identity, you acquire something or obtain the provision of a certain service in the shops that you indicate. At the same time, the specialized company has an agreement with the businesses where the client makes the acquisition requires the service, to charge a commission for all the operation that the client performs. The client, in turn, has an account with the specialized company, for a certain amount and that generally must pay in advance from which is deducted what he has acquired or received for the service.
Fargosi qualifies it as a “complex legal relationship, framed as a contract and credit, the card itself being a probative document of the relationship, which is presented -the latter- as a private assumption of debt.
According to Farina, “the credit card is a nominative, legitimating, non-transferable document, the purpose of which is to allow the user to benefit from the payment facilities agreed with the issuer and those resulting from the contract between the latter and the provider of the good or service required by that. The card issuing company stipulates with the client the opening of a credit in their favor, in order for the client to acquire goods or services in certain establishments that adhere to the system with which, in turn, the company has agreed a respective commission.
The credit card is issued in favor of the user, and it is the essential document to execute the bundle of rights that arises in the trilateral relationship formed on the basis of the conclusion of the contract:
to. Enter the issuer with the person to whom the credit card is given and
b. Between the broadcaster and the merchant.
In short, we affirm that the credit card constitutes a set of multiple relationships of various kinds, so it is inappropriate to try to define it without taking that multiplicity into account. It is therefore necessary to attend to each of the relationships:
• From the point of view of the relationship between the issuer and the holder, the credit card is a contract by which a specialized company stipulates with the client the opening of a credit in their favor, in order to carry out purchases or fulfill services.
• From the point of view of the relationship between the issuing entity and the merchant or supplier, the legal relationship will consist of the commitment, on the part of the former, to satisfy the payment resulting from operations carried out with cardholders, in exchange for a pre-established commission.
• Finally, from the point of view of the link created between the merchant and the cardholder, the card will constitute a true means of payment for the goods or services that are acquired.
According to the Credit Card Regulations, Resolution SBS No. 271-2000 defines the credit card as:
"Article 3.- Credit card
Through the credit card contract, the company grants a line of credit to the holder for a specified period and issues the corresponding card, in order for the user of said card to purchase goods or services in the affiliated establishments that provide them or, in In case of requesting it and thus allowing the issuing company, make use of the cash disposal service or other related services, within the agreed limits and conditions, obliging in turn, to pay the company that issues the corresponding card, the amount of the goods and services you have used and other charges, in accordance with the provisions of the respective contract.
III. LEGAL NATURE
There are several theories regarding the legal nature of the credit card.
to. According to assignment theory, the assignee gives an order to the assignee to make a payment to a third party called the assignee. This theory has been seriously contested. It is argued that it is not simply a matter of giving an order, since in any case the moment at which said order would be given is debatable and the issue is much more complex. On the other hand, the cardholder or user is not the one who puts the issuer in contact with the affiliate, but the issuing entity, which, in connection with the other elements of the trilateral relationship created through the card, sets her in motion. If it were an assignment, the issuer would be obliged to pay the affiliate or would be liable. It has been rightly said that “if the assignment is correct, in a security such as a check,it is illogical trying to apply it in a tripartite relationship to defer certain kinds of payments.
b. According to the theory of the assumption of debt, maintained by the Argentine jurist Horacio Fargosi (op. Cit. Page 933), the credit card is explained as an assumption of debt used as an indirect means of granting credit. As for the cardholder - buy now and pay later - this happens because a third party, the issuing entity, was obliged to pay the amount acquired before the seller, discharging the buyer, who will reimburse the sum of money, within a specified period. This theory does not stand up to harsh analysis either. It can only be referred to a partial perspective, which is the relationship of the affiliate with the issuer, forgetting the second of the relationships that are created.
c. The theory of opening credit, which is supported by Mexican doctrine and legislation, states that the user, when making a purchase-sale, signs a debt acknowledgment corresponding to the amount of goods or services acquired from an affiliated merchant. While the bank or the issuing company agrees with the affiliate a promise to assign the debt. This facilitated the realization of a series of fraudulent businesses by the user, as the debt became almost a simple credit without documentation. But with the opening of credit, a fast and safe way was found to force users and affiliates to pay their obligations. The credit opening theory has been rejected as incomplete. Indeed, and even when it is exact that it recognizes the relationship that is created between the user and the sender,forget the one that arises between the latter and the affiliate.
All human activity involves interaction, and the card is no exception. The relationship of the three personal elements consists of one of multiple and egalitarian character. The three parties that intervene act within a plane of theoretically equal legal considerations.
From the above, a basic conclusion appears and that is that there is a multiple relationship in the credit card, by virtue of the triple personal situation that is established when a purchase is made or a service is satisfied. The purchase and sale and the service are therefore conditioning factors of the previous contracts.
IV. CLASSES OF CREDIT CARDS
Currently there are various criteria for the classification of Credit Cards:
• By the Issuing Entity:
to. Bank Credit Cards are, as their name indicates, cards issued by a Banking Entity. This Banking Entity intervenes both as a card issuer, as well as a financial and credit entity, generating various obligation relationships such as the Bank's obligation to issue the Card and provide a credit to the Card user, as well as to cancel the obligations of the user assumed with the merchant or the affiliated provider, obligations contracted through the use of the Credit Card.
b. Non-Bank Credit Cards, which differ from the previous ones in that whoever issues them, although it is a financial or credit institution that is not located in the commercial banking area and therefore the credit they offer to users of the Credit Card is limited to a certain number of establishments.
c. Credit cards belonging to a certain commercial establishment, which are issued by the commercial establishment for the exclusive use in it, that is, the credit that is provided to them is subject to being used in the consumption of products or services that the aforementioned establishment offer. Its particularity is that the mandatory relationships that arise are only between the Establishment and the Card User, this relationship being a mutual one between the parties, that is, this type of Credit Card is bipartite since there are only two parties that intervene in the Mandatory relationships generated.
• For the credit granted and the method of payment, to. Credit Cards for immediate payment, which are those that have a previously established payment date.
b. "Revolting Credit" which are those that allow the use of a total amount of credit previously paid, this in full or in a certain percentage previously agreed.
c. The mixed ones, which combine and incorporate elements of the two aforementioned types.
• For its duration
to. Limited, those that have a specific term of validity.
b. Unlimited, which are those that do not have a special duration, that is, this is not determined.
V. PARTIES INVOLVED
The credit card Agreement originates legal relationships between several Parties, which are:
1. The issuing entity.
2. The user or holder of the credit card.
3. The affiliate provider.
The fact that there are three parties involved in the credit card contract does not mean that there are 3 types of contracts, but rather a contract that frames 3 parties involved in the contracting of rights and obligations. However, for some authors, yes like Alvarez Correo, as we already mentioned.
It should be noted that there are often 4 parties involved and this occurs when the issuing entity is a legal person other than the intervening Bank.
1. Issuing Entity.- The issuing institution can be patented in the following ways:
to. Commercial companies that issue their own letters of credit, by which they tend to identify their favorite customers and beneficiaries with the opening of credits that are mostly limited to a certain amount, such as stores.
b. Specialized institutions, which are the ones that have given rise to the credit card triads.
c. Financial institutions, which currently energize their actions in credit card operations thanks to the advantages offered by this modality, such as Banks.
Formality of issuing credit cards.- Banking and / or financial institutions that want to issue credit cards have the obligation to notify the Superintendency of Banking and Insurance, accompanying, idem, a copy of the relevant feasibility study of the economic and financial paradigms of the contracts to be entered into by the cardholders with the affiliated establishments, as well as the scheme of the system and procedures to be followed, responsibilities and controls to be used a posteriori.
2. The holder of the credit card.- The holder may be a natural and / or legal person, who is authorized by the issuing institution to use the recognized credit in their daily activities, upon presentation of the credit card. credit that is granted through an evaluation of its economic, moral and related solvency.
3. Affiliate merchant.- It is a supplier who agrees to use the credit that has been granted to the credit card holder.
All affiliated institutions, add to the list of establishments authorized to accept the available credit.
SAW. CREDIT CARD ELEMENTS
I. Personal Items
In the bilateral ones, they consist of two people:
• The Issuer (department stores or establishments) and
• The User Owner.
Greater complexity offers the rest of the cards, since the legal relationship that is generated is plural, as we saw in the previous point, with the following people intervening:
• Generator or businessman issuing the card who has previously committed to establishments or tenants of services to be paid with an agreed discount, how many invoices they present supported by the card;
• The distributor, generally a banking establishment, which, through a commission or prize, distributes the cards among its creditworthy clients;
• The cardholder who, after signing the contract, receives the card. being able to use it in a series of previously determined establishments;
• And finally, the establishment that provides purchases or services, which is obliged to accept payment by card.
According to Arrillaga, there are also other personal elements that he calls special:
• When the contracting party is not the cardholder, but is responsible for the debits of the card and the possible fee established;
• The franchise company that authorizes the issuer to circulate the cards with their commercial name. (Assumption of Visa issued by various banking entities, and of Diner's whose issuance is handled by corporations);
• And finally the guarantor, demanded in some cases by the issuer due to the doubtful solvency of the owner user.
II. Formal elements
They are:
• The request for the card made by the holder or by the person who hires in favor of another. In practice, the distribution banks are in charge of these procedures, offering it to solvent clients as we have already indicated;
• The contract between the issuing company and the commercial establishment that manages goods and services
• The card itself that obliges the issuer to grant a certain credit to the holder and to pay the associated establishments the amount of purchases or the provision of services;
• The debit notes, which duly signed by the owner certify the purchase and its amount or the provision of the service, replace the delivery note of the purchase-sales of movable property; These debit notes are issued in quadruple using the tracing procedure, since the card is embossed, apart from the issuer's identification mark (Visa, Eurocard, etc…), the holder's name and the identification code.
• Finally, the debit note that the issuer sends to the user-holder on a monthly basis.
VII. RELATIONSHIP BETWEEN THE PARTIES
Given the existence of two underlying contracts and the pluralism of the parties; involved in current cards, we have to examine separately the links between them:
IV. Between the issuer and the user-holder.- The relationship is very simple, since the issuer is limited, directly, or through a bank, to send a form with the general conditions of the card to a series of selected people. Once the duly completed form has been received, the issuer sends the card to the user, at which time the contract is perfected, since the signature is a mere requirement for its use. Verify the identity of the applicant, noting:
to. In the case of natural persons, their name according to the official identity document; and,
b. In the case of legal persons, the name or company name in accordance with the documents presented according to and the names of the users authorized to operate credit cards of legal persons in accordance with the official identity documents;
In addition, it must register the signature of the applicant or users authorized to operate credit cards, as appropriate, in the presence of one of its authorized officials. You must verify that the applicant and, if applicable, the user authorized to operate the credit card, are not prohibited from opening current accounts, entering into credit card contracts or operating credit cards;
Verify the veracity of the information provided by the applicant, especially that related to their ability to pay and their address, and must require any other documentation or information that contributes to knowing their client and with these data carry out the evaluation and credit rating of the applicant and enter into the credit card contract with him and finally deliver the credit card and, if applicable, the additional cards, solely and exclusively to the holder or user thereof, under the responsibility of the company.
Once the card is acquired, the user acquires the following obligations:
a) Conservation;
b) Notice in case of loss or theft;
c) Destroy the expired;
d) Present it at the time of purchase or use of a service;
e) Notify the issuer in the event of a change in their personal circumstances;
f) Payment of purchases generally made through bank accounts;
g) Pay interest; of delay in the case of late payment;
h) Reimbursement of the amounts illegally disposed of by a third party, if they did not realize the loss or theft (this responsibility has a maximum limit for each bank);
i) In turn, you have the right to use the card within the limits indicated in the establishments that accept them.
Reciprocally, the obligations of the user are rights of the issuer, being able to add that of receiving the contract in some cases, and that of recovering the card.
V. Between the issuer and the establishment.-
The establishment has the following rights:
to. To be included in the lists of adhered companies or businesses;
b. Display the emblem of the card;
c. Be reimbursed for the charges signed by the users.
The obligations can be synthesized in the following:
to. Accept the card within the limits assigned to it;
b. Apply the same prices and conditions as other customers;
c. Refrain from proposing payment in cash;
d. Make checks regarding the validity of the card;
and. Fill in the charge notes regarding the instructions received, checking the identity of the signatures;
F. Refund to the issuer the amounts paid by the user in the event of invalidity of the card;
g. Communicate the cessation or transfer of the business.
For its part, the issuer has the right to collect the agreed commission and terminate the contract, reliably notifying the establishment within the agreed deadlines.
Regarding the termination of these contracts, we must point out that the card has an expiration date, therefore, it is enough that the issuer does not send a new card for the relationship to be terminated. In the conditions, the issuer reserves the right to terminate the contract, without justifying the cause, this termination implies the obligation to return the document, failure to fulfill this requirement and continue using the card may lead to criminal action.
For its part, the user-holder can terminate the link with the issuer, notifying them by registered letter in which the card will necessarily be included, saving the payment of possible fees from receipt.
The same considerations can be made regarding the issuer-establishment relationship, although, in the contracts it is established that the relationship can be terminated by prior notice, which on the part of the issuer, is usually reliable, when it is on the part of the establishment, it is enough with a registered letter.
SAW. Finally, the relationship between the issuer and the franchise company remains to be examined.
The issuer's rights are:
to. Use of the commercial name; and
b. Benefit from the services the franchisor offers its associates.
As obligations we have:
a. Agreed conditions and
b. Pay the fees established for the use of the commercial name.
VIII. CREDIT CARD FUNCTIONS
The card is a legal instrument that allows its holder to carry out certain operations with the issuer itself or with third parties, replacing the need to use cash, check or other commercial documents. It works as a means of documentary or escriptual payment, in operations with economic significance. The card above all responds to a need of contemporary society. This is how it arose and in that direction it has evolved. There was a need to have an instrument that could intervene in economic and legal traffic, supplying the exchange of cash in commercial transactions originated by private consumption, of small and medium amounts, and / or in competition with other instruments such as checks, whose purpose was different and its acceptance was not the desired one in this type of transaction.The functions that the cards perform have also allowed us to establish a classification of them.
1. Economic-sociological functions
The card is an instrument of commercial and financial development. There is no doubt that the card is the result of commercial development and has become a driver of it. It has influenced the development of the financial market, where it is an important intermediary instrument and generates a good part of the banking profits. Also in Spain, through commissions, and not so much for interest, due to the aforementioned little use of the card as a credit instrument. The card is not only a partial substitute for cash, but it has largely replaced the check, and its greatest merit, at least in Spain, is that it has managed to be accepted without problems in consumer purchases.
The card, on the other hand, allows the commercial establishment to broaden the consumer's spectrum, which it can reach more easily, for the sale of its goods or the provision of its services: the card encourages consumption.
2. Legal functions
The card is an identification tool. It is its primary function that allows the use of the rest of the specific functions. Actually, it is better used to speak of the card as a “means of identification”, which serves both its legal and economic-sociological functions. Identification by itself would not make sense. Its purpose, in the case of the payment card, is to use or access the rest of its functions, which otherwise would hardly be possible. However, we believe it is appropriate to examine the identification between the legal functions, due to the legitimation effect that in the strict sense it provides to the owner. The payment card is already the financial DNI, as the RUC is the DNI before SUNAT. The trend is to unify identification instruments. In practice, the card fulfills various information functions.Identifies the holder, the issuer, contains data related to their identity, and also important information to carry out transactions, related to the type and numbers of accounts, credit limits and available cash, as well as other data that automate or allow to control and ensure the correctness of operations.
IX. LEGAL CHARACTERS
1. It is of a complex type, since a series of legal links emanate between various people in a different way, being able to find in it various contracts such as the opening of credit, the sale of goods, the provision of services, etc.
2. It is plurilateral, since different subjects coexist in its different obligations, such as the issuer of the card, the user and the merchant or provider.
3. Both from the point of view of the legal relationships between the issuer and the user, as well as those that exist between the issuer and the affiliated merchant, it is typical, since at least in Peru it is governed by the 2000 Regulations.
It is pertinent to recall here the words of Francesco Messineo when he affirms that "… legal life does not fossilize in immutable forms, but, on the contrary, is in permanent movement and in constant evolution, also under the technical aspect…", adding that “… To the traditional forms of Romanist origin, figures of contracts that are the result of modern economic life are being added.
4. It is a special legal business, considering that although it has unlimited characteristics in terms of specific situations, its field of application is typical of the commercial activity.
5. It is main, since it does not depend on another contract that precedes it and therefore has a “life of its own”. By this same characteristic, the credit card is immune to the alternatives that an accessory contract may suffer, such as a guarantee, in case it is granted.
6. Due to its function, it is constitutive, since it creates several specific legal situations and does not have the characteristics of amending or regulatory contracts, nor are it resolutive.
7. Due to its provision, it is multilateral, since in each of the numerous reciprocal relationships that it entails, reciprocal benefits are presented. Thus, in the case of the relationship that is created between the issuer and the user, the former assumes as a benefit the obligation to grant a credit to the user represented by the card, while the aforementioned user has the duty to pay the amount of said credit, as consideration. So we could continue with several examples of the many mandatory relationships that arise from this complex contracting.
8. It is onerous, because due to its valuation each of the contracting parties suffers a sacrifice compensated by an advantage and generates correlative enrichment and impoverishment.
9. It is commutative. Each of the parties involved in the numerous obligation relationships that are generated is aware at the time of creating the mandatory relationship, of a certain and concrete fact, estimating in advance the sacrifice and the advantage that may be correspondingly achieved.
10. It is of successive tract, insofar as the duration is not simply tolerated but desired by the parties, so that its usefulness is proportional to it.
11. Its execution and continued. Well, it occurs without interruption in time, and is destined to generate its effects during a more or less prolonged period, which in Peru is a maximum of five years, extendable according to Article 9 of the Regulation.
12. It is an exchange operation, given that its objective is the circulation of wealth through the transfer of goods or services.
13. It also raises an availability relationship, given the credit granted by the issuing institution to the user.
14. By the way, how it is formed is presented indistinctly according to the type of relationship created.
The Regulation in Art. 8 establishes as characteristics:
- Name of the company that issues the credit card and, if applicable, the identification of the credit card system to which it belongs;
- Coded credit card numbering;
- Name of the credit card user and his signature, in the case that the cardholder is a natural person. When the credit card holder is a legal person, the name of the holder and the name and signature of the user authorized to operate the credit card must appear.
- Due date; e,
- Express indication of the geographical scope of validity of the credit card, in the country and / or abroad, as appropriate. In the case of no such indication, it is presumed, without admitting proof to the contrary, that it has international validity.
X. ADVANTAGES AND DISADVANTAGES FOR THE USER OF CREDIT CARDS
Advantages for the User:
1. Immediate credit is offered in numerous establishments throughout the country and of all kinds for the acquisition of goods and services, without there necessarily being any relationship between the cardholder and the affiliated establishment.
2. The replacement of cash handling and the use of checks by issuing a single monthly check.
3. The prestige it brings to the user, since it constitutes a means of identification and reliability, it being understood that every holder of a credit card has been duly cleaned and can be considered economically and morally solvent.
4. It serves to improve your own money management.
5. For budgetary control, since with a single source of information or account statement it is possible to easily detect excesses in some lines and thus facilitate the rational management of the family budget.
6. The cardholder does not need to carry large sums of money, thus eliminating unnecessary risks and avoiding problems caused by non-acceptance of checks.
7. They serve to solve emergencies, illnesses, unexpected visits, improvised outings, anniversary or birthday gifts, as well as the supply of edible products and all kinds of needs in unforeseen situations.
Disadvantages for the User:
1. The loss of time in the transaction while authorizing the credit.
2. The possibility of fraud in cases of intentional misuse, theft or loss of the card.
3. Lack of control in user expenses.
4. Excessive use of financing, which obviously makes the original cost of what was purchased increasingly more expensive.
Regarding the disadvantages that affiliated establishments could face, the following can be mentioned:
The main disadvantage of the affiliated establishment when accepting the payment of invoices through the use of credit cards is that of not being able to convert invoices into cash in less than 48 hours, unless it has a bank account with the bank. card issuer, through which you can make a deposit of the amount of credit card transactions and draw on it almost immediately.
XI. FORMATION OF THE CONTRACT
When a person wishes to access a Credit Card, the first thing to do is approach the Issuing Entity, which, as we have already seen, since it is a Bank Credit Card, the Issuing Entity is a Bank, and carry out the corresponding procedure, presenting the requirements that the Bank requests.
Commonly, the interested party fills out a Membership Application, which is then incorporated as part of the contract that he will later sign. This Application contains general data of the applicant, data of their spouse (if any), the conditions of the card, income statement and average monthly expenses, among others.
After filling out the application, the interested party signs a Bank Credit Card Agreement, which contains the clauses and pre-established conditions that will govern the credit to be granted. This contract will be an Adhesion contract as we will explain later.
The Bank will previously examine if the interested party is a credit subject and if their solvency and conditions, both financial and moral, allow them to access the Credit Card.
Once the data and the solvency of the interested party have been verified, and the Adhesion Contract has been signed, the Bank opens a Current Account from which it will debit the amounts for the use of the Users' Credit Card as well as the consumption made by them in the affiliated establishments, according to the conditions established in the Bank Credit Card Agreement.
Subsequently, the Bank issues the laminated cards for the Users, that is, for the Holder and the other persons that he expressly designates in writing. All cards issued are personal and non-transferable, and have the same limitations and meet the same conditions as the Cardholder's card.
In addition, the issuing institution is the one that indicates the operating guidelines of the system that it generates and manages. Consequently, the cardholder or user has no other option than to accept the conditions imposed on him, which is subject to the rules contemplated in the current Regulations.
Companies must require applicants, at least, to submit the following information, according to Article 4 of the Credit Card Regulations.
1. In the case of natural persons:
- Written request according to the format provided by the company;
- Copy of the official identity document;
- Documents that, at the discretion of the company, prove sufficient payment capacity to be a credit card holder; and,
- Perfectly individualized and determined address.
2. In the case of legal persons:
- Written request according to the format provided by the company;
- Documents that prove the constitution and registration in the Public Registries of the legal person;
- Documents that, at the discretion of the company, prove sufficient payment capacity of the legal person to be the holder of a credit card;
- Number of the Single Taxpayer Registry (RUC) or number that replaces it, of the legal person in case it is a taxpayer;
- Certified copy of the power of attorney of the representative of the legal entity to request and sign credit card contracts, as well as, when applicable, to designate the authorized users to operate with credit cards of the legal entity;
- Written authorization from the requesting legal entity by which it designates the users authorized to operate with credit cards, indicating the scope and limits of their use, signed by the duly empowered representative;
- Copy of the official identity document of the users referred to in the previous number; and,
- Address of the applicant perfectly individualized and determined.
The provisions of Article 17 of the Regulations must be taken into account in terms of the impediment that companies have to enter into credit card contracts with natural or legal persons to whom current accounts have been closed for writing bad checks or being have canceled credit cards for the reasons indicated in article 19, during the closing or cancellation periods established in the respective regulations.
Likewise, they may not be users of additional credit cards, nor users authorized to operate with the credit card of legal persons, those disabled for writing bad checks or those penalized for canceling credit cards referred to in the preceding paragraph.
XII. CONTENT OF THE CONTRACT
According to Article 7 of the Regulations, the Credit Card Agreement must contain at least:
The credit card agreement must contain, at least, the following information:
1. Amount of the credit line;
2. Maximum amount and commission for cash disposition, if applicable;
3. Commissions, postage and other direct expenses for the services rendered, or the criteria for their determination;
4. Compensatory and moratorium annual effective interest rate, or the criteria for its determination;
5. Amount on which interest will be applied;
6. Form and means of payment allowed;
7. Premium, form of payment, coverage and validity of insurance or other coverage or contingency mechanisms intended to cover unauthorized transactions, as well as the procedures for making the respective claims;
8. Procedures and responsibilities of the parties in case of loss or theft;
9. Cases in which the cancellation of the credit card or the termination of the respective contract is appropriate;
10. Sanctions that will be imposed on the holders of credit cards that are canceled by the company, according to the provisions of Article 20 of the Regulation;
11. Frequency with which the account statements will be delivered;
12. Term and conditions of acceptance of the account statement; and
13. Others established by this Superintendency.
Said information must be expressed clearly and precisely, written in understandable language and prominent characters.
(AS ANNEXES, WE PRESENT VARIOUS MODELS OF CREDIT CARD CONTRACTS FROM DIFFERENT BANKS)
XIII. ADHESION CONTRACT
It is common that contracts, due to the economic connotation that they carry, have a preliminary phase to their conclusion, called negotiation.
The term negotiation comes from the expression business which in turn comes from the Latin "negotium" which means that it is not leisure or inaction, among other terms, what is dynamic, what does not remain static.
Negotiation is a dynamic activity that man uses to obtain something he wants from the other party by peaceful means.
It is through negotiation that the parties, without the intention of being bound, inform their counterpart of their intention to contract, and thus initiate self-regulation of what their future obligation relationship will be, in the event of entering into the contract.
However, due to the needs that modern life entails and to mass contracting, which has led to the existence of a client who, due to being anonymous, loses his power to negotiate the contract, a new type of contract has been created, which is It can be classified by the way it is formed, since this type does not admit the negotiation stage described above, since its clauses are preliminarily determined by one of the parties, in which case, the other party may accept without discussion and thereby formalize by adhering the contract, or rejecting and not creating a mandatory relationship.
The Adhesion Contract, Stiglitz points out, is inextricably linked to the so-called consumer society and this in turn is closely related to large companies and the marked trend towards mass production of goods and services.
The Peruvian Civil Code of 1984, in its article 1390 defines the adhesion contract, stating that it will be an adhesion contract when one of the parties, placed in the alternative of accepting or rejecting in full the stipulations established by the other party, declares its willingness to accept.
It is then a contract that contains an offer and an acceptance, where the offer does not accept any modification, since it covers the entire contractual area, leaving the recipient in the possibility of accepting or rejecting it in its entirety. There is thus a declaration of will by the recipient of the offer when accepting it and entering into the contract.
We believe that, based on the modern economy and standardized production, adhesion contracts are a special form of contracting, because there is an agreement of wills eliminating the previous stage of negotiation. It must be taken into account "that membership means not arguing, which does not mean not deliberating, since that possibility always exists."
For the aforementioned, in our understanding, the Bank Credit Card Agreement is an Adhesion Agreement, since the person who wants to access the service that the Bank offers, and therefore become a Credit Card User, only You have the possibility to accept or reject the terms of the contract that is presented to you, your contractual freedom being limited to accept and with it, express your willingness to contract, and therefore have accepted the offer, without any possibility of modifying it. In the event of not agreeing with any stipulation of this offer, you can only reject it, and therefore not carry out the contract.
XIV. CHARGES, POSTAGE AND INSURANCE
According to article 11 of the Regulation, "The companies will debit the corresponding credit card accounts, the amount of the goods and services that the card user acquires using the same, in accordance with the payment orders that he subscribes, the amount of cash withdrawn and the use of other related services, as well as the interests and other obligations indicated in the credit card contract, in accordance with current legislation on the matter.
Payment orders and signatures may be replaced by authorizations by electronic means and / or electronic signatures subject to certification by the company that issues the credit card or entity that it designates; as well as by express authorizations previously granted by the credit card holder.
The amounts of commissions, postage and other direct expenses referred to in paragraph 3 of article 7 of these Regulations must be associated with the expenses actually incurred. "
Commissions are charges for different concepts made by those who grant the credits and can manage the credit, administer it, etc. Freight charges are the charges made by entities that grant credits for sending correspondence, financial statements, notices, accounting notes, etc. Insurance is included by some banks and commercial houses in order to cover any eventuality that compromises the fulfillment of the debt payment.
XV. ACCOUNT STATEMENTS
Companies must send, at least monthly to credit card holders, an account statement that includes in detail the charges and payments made in each settlement period, the corresponding payment amount, as well as the balance at the end of the same.. This account statement must contain, as a minimum, the following information:
1. Name of the owner and user;
2. Credit card identification number;
3. Period of account statement;
4. Due date and minimum payment amount;
5. Indication of the affiliated establishment, the date and the amount of the transactions registered in the reported period;
6. Amount of accrued interest;
7. Other charges, if pertinent, with express indication of their concept and amount;
8. Payments made by the holder during the reported period, indicating date and amount;
9. Balance due to date;
10. Amount available in the credit line and,
11. Compensatory interest rates and moratorium in force on the date of the account statement.
Companies are obliged to send account statements to the address indicated by the credit card holder with the necessary anticipation so that he can make the respective payments in a timely manner. If the holder does not receive said account statements in a timely manner, he will have the right to request them from the issuing company and the latter will have the obligation to provide a copy of them immediately.
(AS ANNEXES, WE PRESENT VARIOUS MODELS OF CREDIT CARD ACCOUNT STATEMENTS FROM DIFFERENT BANKS)
XVI. CANCELLATION OF CREDIT CARDS
According to Chapter V of the Regulations, holders or users may request the cancellation of credit cards and the termination of the respective contract by written communication to the company, without prejudice to the obligation to pay the corresponding debit balances.
Companies must cancel credit cards, including additional cards, or terminate contracts in the following cases:
1. When the credit card holder has failed to pay two successive repayment installments to the same company, in the form of a credit card.
2. When any of the obligations of any nature assumed by the holder of the credit card against the issuer of the same, are classified in the category of doubtful or loss.
3. When the holder of the credit card has closed any current account for drawing against it without the corresponding provision of funds, either in the company itself or in any other of the financial system, according to the publication made by the Superintendency.
Likewise, companies must cancel the credit cards of users of additional credit cards and users authorized to operate with credit cards of legal entities, when they are included in the previous paragraphs.
Holders of credit cards canceled for the aforementioned causes are prevented from applying for a new credit card at any company in the financial system, for a period of one year from the respective cancellation date. Likewise, without prejudice to the collection of the corresponding debts, the companies, within ten (10) days after the start date of the dissemination indicated in article 25 of the Regulation, must cancel the credit cards of the persons listed in the aforementioned diffusion and not grant them new credit cards during the terms established in this article.
In case of recidivism for the first time in the causes of cancellation provided for in the preceding article, the holder's credit cards will be canceled, and said impediment will last three (3) years. If you repeat a second time, the impediment will be permanent.
In cases where the company improperly cancels the credit card of a holder for the reasons indicated in article 19, it must proceed to the corresponding rectification within ten (10) days after receiving the request for rectification from the interested party. or to the detection of undue cancellation without request. To this end, the company, under its responsibility, cost and charge, must communicate in writing to the risk centers and affiliated establishments to whom the cancellation communication was addressed, the mistake incurred. In addition, the company must bear the costs of rectification in the same medium used by the Superintendency to disseminate the corresponding cancellation of the credit card and, if the court determines it,indemnify the affected client for the damages caused.
Companies must send a printed report to the Superintendency of Banking and Insurance containing the list of all canceled credit cards and the corrections corresponding to the previous month, within the first five (5) business days of each month. The aforementioned report must contain the due justifications that support said information, duly signed by the general manager and the official responsible for it.
In case the Superintendency considers that the justifications for the rectifications made by the company are not sufficient, it may cancel said rectifications. The Superintendency may also establish other means for sending the information.
XVII. CONTRACTS WITH AFFILIATED ESTABLISHMENTS
The companies that issue credit cards, either directly or through credit card systems, will enter into contracts with the affiliated establishments, through which they undertake to receive the payment orders signed by the holders or users of the credit cards. credit, or to obtain the respective electronic signatures or prior authorizations that allow the respective charges to be made, for the amount of the goods and / or services supplied within the country or abroad, as appropriate.
In the contracts with the affiliated establishments, the companies undertake to pay to said establishments or to the credit card systems in which they are incorporated, the amount of the validly issued or authorized payment orders in accordance with the conditions agreed by the parties, within the framework of the Regulation.
In contracts with affiliated establishments, the following must be included as their obligations:
1. Verify that the credit card is valid, noting, if applicable, that it does not appear in the list of canceled cards, according to the information received;
2. Verify the identity of the user;
3. Check that the user's signature on the payment order corresponds to the one that appears on her credit card, or have the approval of the electronic signature or other substitute means of the graphic or handwritten signature;
4. Be subject to the transactions carried out at the maximum amount authorized by the company; and,
5. Other procedures that the company deems convenient for the security and proper use of credit cards, in accordance with the rules of the Regulation and pertinent legal provisions.
XVIII. LINK WITH THE CURRENT ACCOUNT AGREEMENT
We must clarify that the relationship that we are going to deal with refers to the Bank Current Account, which is a contract for the management of someone else's business, which consists of the performance of a cash, payment and collection service on behalf of and in the interest of the client. It can also be understood in financial terms as a neutral operation.
The link between this contract and that of the Credit Card is extremely close, because to access the Bank Credit Card, the Bank opens a Bank Checking Account, from which the amounts of the use of the Bank Credit Card will be debited., as well as the consumption made with it.
It is for this reason that to access a revolving line of credit, both contracts, the Bank Credit Card and the Bank Checking Account, are closely linked, since without the execution of one the other could not be possible. We are not in a relationship of the main contract and an accessory contract, but they are complementary contracts whose nullity would lead to the nullity of the other contract.
XIX. THE CREDIT CARD AS A MEANS OF ELECTRONIC PAYMENT
When we access a virtual store and we want to buy a product, we can see that the payment options include the following means: Credit Card, Debit or Current Account, etc. What is clear to us is that bills or coins are not valid on the Internet. The Credit Card is the most used Payment Method among cyber consumers today.
This is basically due to its easy use, an essential characteristic of this means of payment, and for the security that it provides both to the seller, since there is some Financial Institution that supports the Consumer, as well as for the Consumer since Credit Cards They are covered by insurance.
Likewise, there is generalized confidence that the operations carried out using Credit Cards are more proven and have all the guarantees.
It is essential to take into account for the Peruvian case that for the Credit Card to be valid, it must contain the name of the Company that issues the card, as well as the Credit Card system to which it belongs, encoded card numbering, name of the card User and his signature, expiration date and express indication of the geographical area of validity. In case of missing this last requirement, it is understood without admitting evidence against it, that its validity is international.
CONCLUSIONS
1. There are different positions regarding the historical origin of the credit card. Some authors point out that the credit card originated in the United States of North America, other authors point out that the credit card dates back to European countries, such as France, England and Germany.
The position that the beginning of the life of the credit card begins with that of the North American Diner's Club has become widespread. From there it spread to other countries.
2. The Legal Nature of the Credit Card is to be a credit banking contract, by means of which the Issuing Entity agrees to grant a revolving credit line up to the amount fixed by the parties.
3. The Bank Credit Card Agreement is an Adhesion Agreement, since the person who wants to access the service that the Bank offers, and therefore become a Credit Card User, only has the possibility of accepting or rejecting the terms of the contract presented to you.
4. The credit card Agreement creates legal relationships between several Parties, which are: The issuing entity, user or holder of the credit card and the affiliated provider.
5. Regarding the formation of the Contract, the first thing to do is approach the Issuing Entity, presenting the requirements that the Bank requests.
Fill out an Affiliate Application, with the general data of the applicant.
Then he signs a Bank Credit Card Agreement, which contains the clauses and pre-established conditions that will govern the credit that will be granted. The Bank will examine if the interested party is a subject of credit and if his solvency and conditions, both financial and moral, allow him to access the Credit Card. Once this has been verified, and the Accession Agreement signed, the Bank opens a Checking Account. Subsequently, the Bank issues the laminated cards for Users.
6. The companies will debit the corresponding credit card accounts, the amount of the goods and services that the card user acquires using the card, the amount of cash withdrawn and the use of other related services, as well as interest, the amounts of commissions, postage and other direct expenses.
7. Companies must send, at least monthly to credit card holders, an account statement that includes in detail the charges and payments made in each settlement period, the corresponding payment amount, as well as the balance at the end of the same.
8. The Credit Card is the most used Payment Method among cyber consumers today, this is basically due to its easy use, an essential characteristic of this payment method, and for the security that it provides both to the seller, since There is some Financial Institution that supports the Consumer, as well as the Consumer, since Credit Cards are often covered by insurance.
9. There is general confidence that the operations carried out using Credit Cards are more proven and have all the guarantees.
BIBLIOGRAPHY
- E. Chuliá Vicént and T. Beltrán Alandete. "Legal Aspects of the Different Atypical Contracts" Montoya Manfredi, Ulises (2001) "Commentary on the Securities Law." Fargosi, Horacio, "Esquicio on credit cards" Farina, Juan M., (1993) "Modern Commercial Contracts" Buenos Aires: Editorial Astrea. P.570 Di Marchi, Giorgio (1970) "Credit Card and Bank Card", Milan. Arias-Schereiber Pezet, Max and others. (1999) Modern Contracts. Lima: Gaceta Jurídica SA p. 29 Arias-Schereiber Pezet, Max and Gutierrez Camacho, Walter. (1999) "The Contractual Technique and its contractual models" Volume I. Lima: Gaceta Jurídica SA Fentanes, Juan Eduardo (1999) "Credit Card". Faculty of Law, University of Buenos Aires. Buenos Aires. Sarmiento Ricausti, Hernando. (1973) The Credit Card. Bogotá: Editorial Themis.Stiglitz-Stiglitz (1985) “Contracts for Adhesion. Abusive Clauses and Consumer Protection. " Buenos Aires: Editions De Palma. 1984 Civil Code. Article 1390 Regulation of Credit Cards. SBS Resolution No. 271-2000 General Law of the Financial System and the Insurance System and Organic Law of the Superintendency of Banking and Insurance Law No. 26702. Securities and Securities Law.
