In recent days, our partner Luis Chalhoub, specialist in Financial and Banking Law, provided training to a large group of legal and banking professionals, in relation to traditional bank guarantees and some new guarantee schemes, such as guarantee trusts, demand guarantees and the new regime on chattel mortgages.
Traditional guarantees have been presenting some drawbacks that have led to the emergence of new schemes. Among the disadvantages, we can point out the quantitative and qualitative dynamism of the assets comprising a person´s patrimony, legal rigidity in terms of contractual types, the accessory nature of the guarantees with respect to the secured obligation, the requirement of judicial execution in the event of default of the secured obligation, the express prohibition of the pactum commisorium (forfeiture clause) on the pledge and mortgage, and the indivisibility of the guarantee.
Trust as a means of guarantee has been well received, because it allows overcoming the drawbacks mentioned above. The Trust is not accessory, has no limitations as to the types of assets subject thereof, it can be executed extra judicially, it does not prohibit the pactum commisorium (forfeiture clause) and you can add beneficiaries or assets, if necessary.
On the other hand, the International Chamber of Commerce approved and put into effect in 2010 a new publication on demand guarantees. Such guarantees also overcome many of the disadvantages of traditional guarantees, as they are autonomous and require payment at the simple demand of the secured creditor.
Finally, in late 2013, Law 129 was passed, expanding significantly the range of options to constitute chattel mortgage. Under this new law, fungibles, cash, present and future accounts receivable, fructus civiles, can be mortgaged now; even generic mortgages can be made. In addition, the possibility of extrajudicial execution of the chattel mortgage was introduced.
It was a great pleasure for Attorney Luis Chalhoub to spend time with our distinguished clients in said event.