Castellán

Since the entry into force of Law No. 18,600, our country began to strongly promote the documentation of commercial operations through electronic receipts, allowing companies to improve their cost processes and document management.

But these advantages also have their downside. When the debtor omits to make the payment voluntarily and the "friendly" negotiations are unsuccessful, the judicialization of the claim against the debtor (recovery) represents an additional difficulty in most cases.

What has changed?

Although the commercial invoice is a written document (or now electronic), issued by the seller of a good or provider of a service, and serves as proof of the contractual relationship with the recipient, this document - by itself - does not demonstrate that the contract has been fulfilled. For this reason, in cases of uncollectibility, in order to access a quick judicial route for the execution of the debtor (executive judgment), our Law requires that the invoice be signed or have an associated delivery note signed and recognized by the debtor and/or their representative (sometimes our judges also accept the signature by a debtor's employee).

The executive judgment is a structure for the collection of a debt that is characterized by being simpler, more agile, and favorable to the creditor in which, without prior notice to the debtor, the execution and the generic or specific seizure of their goods and rights will be decreed. But if the invoice and/or the delivery note is not signed, even if it is an E-Invoice accepted by the recipient in their billing software, the recovery must be processed through an extensive trial, which only allows the debtor to be seized at the end of the process.

In addition to the handwritten signature: what other types of signatures can be used?

The E-Invoice can be electronically signed. In fact, the Law granted the so-called "advanced electronic signature" the same validity and effectiveness as the handwritten signature (not so the simple electronic signature).

An advanced electronic signature is one that has the following characteristics:

a) contains information known exclusively to the signer, allowing their unique identification;
b) is created by means that the signer can keep under their exclusive control;
c) can be verified by third parties;
d) is linked to an electronic document, so that any subsequent alteration in it can be detectable; and
e) must have been created using a technically secure and reliable signature creation device and be based on a recognized certificate valid at the time of signing.

The advanced electronic signature only meets these characteristics when it has been granted and authorized by the Electronic Certification Unit dependent on AGESIC, or by any accredited certification service provider.

So, for access to the fast execution route in a recovery: what is valid?

As highlighted above, as always, invoices and/or delivery notes "in paper format" signed by the debtor with a handwritten signature are valid. And also E-Invoices and/or E-Delivery notes, with an advanced electronic signature. But also valid, and something to consider, are printed E-Invoices and/or E-Delivery notes, signed by the debtor with a handwritten signature.

Final considerations

It is undeniable that electronic invoicing is leaving traditional invoicing behind. However, the same does not happen with obtaining the advanced electronic signature. It is a reality that few companies have obtained it, mainly due to its cost and because there are practically no computer systems that allow its use between companies, or between these and the State.

In view of the above, in order for E-invoices and their corresponding delivery notes to be considered executive titles - thus avoiding the "long" trial for a possible recovery - when operationally feasible, it is advisable for the company to print them and obtain the handwritten signature of the debtors, as must be done with traditional invoices.

In this sense, if the company delivers merchandise through a delivery company, or if the merchandise is exported, it would be advisable to try to include within the services to be provided by the delivery person, giving the debtor a printed copy of the E-Invoice and/or E-Delivery note along with the merchandise, so that it can be checked by the buyer - as usually happens in retail companies - and signed by them as a sign of conformity and compliance.

Dr. Valeria Motta

Montevideo, February 19, 2021