Civil Law

In executive collection proceedings based on instruments such as promissory notes or bank loans, the most relevant defenses are built on Article 464 of the Code of Civil Procedure (Código de Procedimiento Civil), which governs the defenses admissible against enforcement. Among the most frequently invoked are prescription (ordinary or executive), the instrument’s lack of executive force, full or partial payment, nullity of the act or contract from which it arises, and falsity of the instrument where there is a discrepancy between what was signed and what is being claimed. What matters most is analyzing the chain of enforceability of the debt, the history of effective collection steps taken by the creditor, and the regularity of service of process. A well-structured defense can not only prevent attachment and enforcement, but also result in an award of costs in favor of the debtor when the court finds that the collection was improper or brought on insufficient grounds.

When a judgment becomes final and enforceable, all avenues of ordinary or extraordinary challenge are deemed exhausted, and it becomes an instrument with binding force. In enforcement matters, this enables a request for compulsory performance through liquidation of the amount owed, determination of costs, withholdings, attachments, and subsequent judicial auctions where applicable. From that point on, the court must issue the orders necessary for the judgment to be performed on its terms, including the assistance of law enforcement or coercive measures in cases of unjustified resistance. Finality is also relevant for calculating prescription periods: under Article 2515 of the Civil Code (Código Civil), the executive action prescribes in three years (surviving two more years as an ordinary action), and the ordinary action in five years.

The certification issued by the certifying officer (ministro de fe) is not a judicial ruling in the strict sense, but an administrative act of record. It can therefore be challenged through a reasoned motion for reconsideration (recurso de reposición) where there is an error in calculating the deadline, defective service, an unrecorded suspension of deadlines, or a provable circumstance of force majeure. The court is required to review the record and, where appropriate, correct the erroneous certification, since what matters is safeguarding the right to a defense and the adversarial principle. Courts have repeatedly admitted well-founded motions for reconsideration when the certification does not faithfully reflect the procedural status of the case.

The court has broad powers to ensure the judgment is fully enforced. It can order the attachment of movable property, real estate, bank accounts, tax refunds, or other assets, and can order asset searches through official requests to public and private institutions. It can also order judicial auctions, wage withholdings, prohibitions on entering into acts or contracts, and the appointment of custodians. In cases of unjustified non-compliance, it has the power to impose coercive measures such as fines and the assistance of law enforcement. The guiding principle is that the judgment must be performed effectively, in a timely manner, and on the terms set out in the ruling.

In the event of a breach, the Civil Code (Código Civil) generally allows you to choose between demanding specific performance of the obligation or seeking the termination of the contract (resolución), and in both cases claiming compensation for the damages caused (article 1489). The strategy depends on whether you are still interested in having the contract performed or prefer to set it aside and be compensated. It is key to gather evidence of the contract and of the breach, and to review the deadlines, because the actions are subject to prescription periods. An early analysis makes it possible to choose the most suitable route and, where appropriate, to obtain an award of costs.

When the tenant stops paying or does not return the property at the end of the contract, the path is to sue for the termination of the lease and the return of the property before the competent court, in accordance with Law No. 18,101 (Ley N° 18.101) on the lease of urban property. Law No. 21,461 (Ley N° 21.461) (“Devuélveme mi casa”) introduced a faster monitory procedure to obtain the return of the property and the collection of unpaid rent, with measures to speed up the handover. It is advisable to have on hand the contract, the proof of payment, and the communications with the tenant. Good case preparation reduces the timeframes and improves the chances of recovering the property and what is owed.