Legal improvisation and illegitimate collection

About five decades ago, this server formulated a couple of legislative projects to solve a serious phenomenon of a legal nature derived, at that time, from the famous error of December 1994. One related to legal unpredictability, and another regarding illegitimate collection . The first is of a civil nature and the second of a criminal nature.

The theory of unpredictability is a highly technical legal topic of practical application, and extremely useful in contractual relationships. It serves both companies and clients. Its regulation concerns the legislative body.

The solution of controversies derived from said relationships is the responsibility of the institution of justice administration. As far as this theory concerns everyone. It can be used in certain adverse financial circumstances.

Such a theory is known in Latin as the Rebus Sic Stantibus clause, of very ancient Roman origin, which in Spanish means “things being like this”.

In simpler words, it means that, if the factual circumstances under which a contract was signed change in a significant way that affects the parties, such a situation is contemplated in its clauses from the law, and its revision.

For example, if at a certain time after a contract is signed, an economic crisis that generates high inflation occurs that produces a disproportionate rise in prices and high unemployment, in such a way that the circumstances in fact would be very different for both parties, especially for the debtor of the credits granted through said contract, whose situation makes the contracted debt unpayable, as has happened in various economic and financial crises in this country.

These are people who were financially and morally solvent at the time; From where they turned out to be subjects of credit, and that at the time they were granted the same, but that, due to this or another circumstance beyond their control, they fell into insolvency.

It is there where this theory would enter into operation contractually, and also the companies that granted said credits, would have allowed them to manage and make effective the corresponding insurance for a certain time, derived from the contractual clauses themselves.

In this way, the credit companies would have reduced, or attenuated, at least at the time, the losses suffered by this drastic economic phenomenon. The accumulation of unpayable overdue portfolios would also have been largely avoided.

The latter usually generates excessive and unethical harassment from some collection firms; This phenomenon even generates serious health problems in debtors who have fallen out of favor for unforeseeable reasons beyond their control, such as, for example, those derived from the famous error of December 1994.

Before which, from that time we saw the need to solve both phenomena – the legal lack of foresight and the illegitimate collection – through the legislative process.

To this end, we formulated –since 1995– a couple of initiatives: one to add the Civil Code for the State of Sinaloa, with the purpose of instituting the figure of legal unpredictability; and the second, with the purpose of classifying illegitimate collection as a crime, since there is a bad and undesirable practice in it by some legal firms that are dedicated to it; doing it without the slightest code of ethics, through certain threats that are inappropriate, outside of all jurisdictional and legal procedures.

The first question is already practiced in some credit contracts, especially of a banking nature. The second was instituted here in Sinaloa at our request, through an addition to the Substantive Penal Code, which defined the crime of illegal collection.

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