Practical disadvantages regarding the regulation of the electronic invoice as a security instrument

The aforementioned decree solved a practical problem that arose due to the lack of regulation of such matter, which obliged companies and traders to invoice electronically in compliance with the tax regulation, but to print such invoice and subscribe it to be physically delivered to the purchaser, or to whom the service was rendered, in order to avoid discussions regarding its validity as a title to initiate executive proceedings with respect to the defaulting debtor. This was since there was no regulation to guarantee the requirement of originality of the invoice as a valuable title.

The same difficulty arose with respect to the endorsement or circulation of the instrument since it was impossible to do so electronically.

Although with the creation of the Electronic Registry or Electronic Invoice System (RADIAN) the practical inconveniences mentioned above may be solved, Decree 1154 of 2020 has some inconvenient rules that could encourage litigation between creditors and debtors or hinder the collection process.

One of them is related to the implicit acceptance of the invoice, since the Decree establishes that it will be understood as tacitly accepted within three (3) business days following the date of receipt of the goods or rendering of the service, which differs from what is established in paragraph 3 of article 773 of the Code of Commerce, since it is regulated in this article that the three (3) business days will run from the day following the receipt of the invoice and not from the receipt of the goods or rendering of the service. In commercial practice, invoicing does not always coincide with the date of delivery of the goods or rendering of the service, so this difference may cause discussions between creditor and debtor.

Another rule that may lead to disputes is the one that regulates the registration of the payment of the invoice, in the understanding that it establishes the burden for the debtor or acquirer to register in the RADIAN the total payment of the invoice immediately upon the occurrence of the same, and if they neglect it, the possibility of doing so is recognized, in a subsidiary manner, to the legitimate holder. In the case of partial payments, the burden of registration will be on the legitimate holder, and in the event of failure to do so, the acquirer or debtor may subsidiarily proceed with the same.

Although, in principle, the above-mentioned rules do not seem to be conflicting, the truth is that in commercial reality there are several differences with respect to the imputation of payments. For example, in the case of a debtor of several invoices who makes a payment to his creditor that is not enough to cover the totality of the claim, and that there is a divergence between one and the other with respect to the invoices to which the payment will be imputed; in this case it could happen that the debtor registers before the RADIAN the cancellation of one of the invoices against the creditor's opinion, which would imply, once the cancellation has been made, the impossibility of collecting the invoice through the executive process.

In this sense, it is up to the legitimate holder to promote a declaratory process to resolve the conflict based on Article 881 of the Commercial Code (supplementary rule on the imputation of payments), in the absence of a contractual stipulation between the parties.

Therefore, although with the issuance of the Decree the practical problems indicated at the beginning of this document were solved, others were created which, in the absence of an agreement between creditor and debtor, will have to be solved in the judicial scenario.