Bond to guarantee professional services

Two companies they celebrated a contract of benefit of services and, to guarantee compliance, the company that agreed to provide the services (trusted company) signed, through a surety company, a surety contract in favor of the company to which it would lend the services (beneficiary company).

It turned out that the beneficiary company claimed the breach of contract of provision of servicesso it initiated an internal procedure before the surety company to claim payment of the bail.

However, the surety company considered payment of the bail inadmissible.

Before said refusal of paymentthe beneficiary company promoted a special trial of sureties in which the surety company was sentenced to pay the bail and it was determined that the sentence also affected the secured company, even though the latter had not been called to trial.

Dissatisfied with said resolution, the secured company promoted an indirect amparo claiming the unconstitutionality of articles 280 and 289 of the Insurance and Bonding Institutions Law (based on which it had been affected in the ruling of said trial) considering that violated his right to procedural equality, since by not contemplating the obligation to involve the bailee in the special bail trial, it prevents him from providing elements to demonstrate compliance with the obligation guaranteed by the bail bond, which violates the rights of hearing and defense of the fiada.

He District Judge who knew about the protection denied it. Therefore, against that resolution, the parties filed appeals for review, which were sent to the Supreme Court of Justice of the Nation to rule on the constitutionality of the aforementioned articles.

The First Chamber of the SCJN considered when resolving the appeals that, “the participation of the surety in the bail claim procedure is imperative, since the surety institutions are obliged to make the surety aware of the presentation of the claim and require him to Provide the information and documentation that you have and that will help the surety to resolve the origin of the claim.”

This is given that: “In the Second Chapter, entitled “On Surety Procedures”, of Title Six, called “On Procedures”, of the Law on Insurance and Surety Institutions, the claim procedure and the trial are regulated. bail bond special. In both procedures, the participation of the surety is contemplated with the purpose that he, in his capacity as main debtor, provides all the information and documents he has to prove whether or not the obligation guaranteed by the surety has been breached. However, the law regulates the participation of the surety in the claim procedure and in the special bail trial differently, since it provides that in the first his participation is imperative, while in the second, it is contingent.

“From article 289 of the Insurance and Bonding Institutions Law, it follows that the surety company must inform the surety of the presentation of the claim and he in turn has the obligation to provide the surety company with all the necessary elements and documentation. to determine the origin and, where appropriate, the quantification of the claim; or, its inadmissibility.”

“In addition, from the systematic interpretation of articles 279 and 289 of the aforementioned ordinance, it was concluded by said Chamber of the highest Court that the claim procedure is a route that must be exhausted before going to the special bail trial, therefore it is It is reasonable to foresee the obligatory call of the surety to said procedure. With this, the surety companies are obliged to make the surety aware of the presentation of the claim and require him to provide the information and documentation that he has, with the purpose that, from this stage, the surety company has all the information and available documentation that allows you to resolve the origin of the claim.

Giving rise to jurisprudence BAIL CLAIM PROCEDURE. THE PARTICIPATION OF THE TRUSTEE IS IMPERATIVE FOR ITS SUBSTANTIATION, published in the gazette of the federation's judicial weekly on Friday, March 29, 2024, with digital registration: 2028485.

As always, a pleasure to greet you, hoping that these few letters have been to your liking and; above all useful. See you next time!

More from the same author:

Graduate in law from the Sinaloa Free School of Law, master in constitutional law and amparo and master in commercial and business law, with honorable mention, from the Universidad Panamericana, Guadalajara campus. He graduated with honorable mention from the postgraduate courses in civil and commercial procedural law, law of obligations and contracts and tax law taught by the Universidad Panamericana, Guadalajara campus and is a specialist in the areas of administrative, civil, family, commercial, agrarian, protection. , notarial and corporate. He is studying the AD2 Senior Business Management program at IPADE. He is director of the legal services company LMA, Integradora Legal, based in Culiacán and Mazatlán. Member of the Mexican Bar Association, AC, he was president of the steering committee and founder of the Sinaloa chapter, and currently a member of the national council of said association, he also belongs to the American Bar Association. He is a professor at the Sinaloa Free School of Law, and serves as an advisor to the advisory council of the State Human Rights Commission of the State of Sinaloa. He was secretary of agreements of the First Criminal Court of La Paz and external legal advisor and Interim Secretary of the City Council of the Municipality of Rosario.

see more