By: Andres Lopez
The protest of documents or securities can be described as a figure or legal procedure that is of importance, this being an essential requirement for the holder of said security to be able to exercise the exchange action against the obligor, and it is an integral part or indispensable requirement since this presupposes the beginning of the collection process of a credit title, provided that this requirement is inserted or stipulated within the body of said document, taking into account its literalness, with the ultimate purpose of being able to initiate the legal action for collection before the bodies competent courts.
We describe the protest as an act that is formal and has a certain solemnity in view of the notarial intervention that it requires for the validity of the collection of the title, on this Article 472 of the Guatemalan Commercial Code establishes that: “…The protest will be carried out with the intervention of the notary and its omission will produce the expiration of the return actions. The protest will only be effective if it has been made on time and in compliance with the provisions of this section…”; this, with the exception of the case of the check which, according to the norm, the clearing house of the drawee bank upon stamping its seal, if it was presented on time and not fully or partially paid, will have the effects of said protest, and which may be made on the check itself or on a sheet attached to it.
Notarial protest requirements:
The Guatemalan Commercial Code establishes in its Article 480 that: The protest will be recorded by reason put in the body of the letter or on a sheet attached to it, in addition, the notary who practices it will draw up a record in which he assents:
1. The literal reproduction of everything that appears in the letter.
2. The requirement to the drawee or acceptor to accept or pay the bill, with the indication
whether or not that person was present.
3. The reasons for the refusal to accept the payment.
4. The signature of the person with whom the procedure is understood, or the indication of the
inability to sign or his refusal.
5. The expression of the place, date and time in which the protest is made, and the signature of the authorizing official.
6. The notary will notarize said act.
For its part, the Guatemalan Notary Code in its Article 61 establishes that for a notary to record the protest, this act must be documented through a notarial deed, this notarial deed must contain the minimum requirements of all deeds and that they are the following: 1. The place, 2. Date; 3. Time of the diligence; 4. The name of the person who has requested it; 5. The names of the people involved in the act; and 6. The circumstantial relationship of the diligence.
According to the regulations, there are different types of protest, such as protest for lack of acceptance, which operates when the title has been presented for its compensation and the same has not been effective in its payment within two days after its presentation; or protest for non-payment, which is raised within two days after the expiration date of the title, and that on said expiration date it has not been effectively paid.
Although the law establishes certain exceptions depending on the type of credit titles in question, such as bills of exchange or checks, the generality of the act presupposes the timely notarial intervention in order to grant the title the necessary effectiveness for the subsequent collection process. .
Finally, we will mention that the notary who has raised the protest, or the holder of the title whose acceptance or payment has been refused, must give notice of this circumstance to all the signatories of said title, whose address appears in the document within two days following the date of the protest, this in order to alert the issuers and eventual managers of such situation on the main road or return about the collection at the door.