At the moment of formalizing a representation agreement with our clients, several doubts arise, not so much in relation to the legal issues and the content of the claim, but especially in relation to the different procedures to be carried out by us in the framework of the legal services contracted. Therefore, from Albos Law, we have considered it appropriate to inaugurate a new section in our publications, in which we will talk about the various procedures with the aim of collecting the answers to the vast majority of queries that our clients have been asking us.

In the great majority of cases, when a civil or commercial claim is entrusted to us, we foresee as part of our services the realization of a first extrajudicial claim to be carried out before starting the preparatory steps of the lawsuit in question. The main reasons for this procedure are the following:

  • It is a means to try to reach an agreement with the opposing party, avoiding the judicial procedure, which involves more time and more costs for all parties, as well as the assumption of more risks, which we will discuss in another future publication in more detail. In the legal field, there is no truer phrase than “a bad agreement is better than a good trial”, since submitting to the decision-making criterion of a third party (the Judge), in charge of interpreting the regulations applicable to the specific case, implies an uncertainty that in the extrajudicial field can be eliminated by reaching an agreement between the confronted parties.
  • It is a means to interrupt the statute of limitations of the actions to be exercised, being that most of the actions are subject to legal statute of limitations for their exercise. An extrajudicial claim, carried out by reliable means (by which its effective reception by the claimed party is accredited), supposes that the counter restarts again. This will also be dealt with specifically in another publication.
  • Finally, less important than the two previous ones, but also interesting, to be able to guarantee that the opposing party is ordered to pay the procedural costs, in the event of filing a lawsuit and seeing all the claims requested through the same being fully upheld. Article 395 of the Civil Procedure Law provides that “If the defendant accepts the claim before answering it, the imposition of costs will not proceed unless the court, with due reasoning, appreciates bad faith on the part of the defendant. It will be understood that, in any case, bad faith exists if, before the claim was filed, a reliable and justified request for payment had been made to the defendant, or if a request for conciliation had been addressed against him“. That is to say, whenever there is a prior, reliable and justified request to the opposing party, and the latter ignores it, and a lawsuit is filed, even if the defendant eventually accepts the claims of the lawsuit, it will be considered that there is bad faith, and therefore there will be a sentence in costs, and, with this, the procedural costs (especially lawyer and “procurador”) invested in the procedure can be recovered.

The duration of this procedure usually ranges around two months, which includes the preparation and sending of the extrajudicial communication, as well as a sufficient period of time, but determined in any case, for the negotiation procedures. Although there are exceptions to the above, for example, cases in which there is an express refusal of the other party to submit the dispute to negotiation, or cases in which simply no response is received within a reasonable time (at most within the first month from its referral). In the latter cases, in the same way as if no agreement is reached within a reasonable time, we will proceed to start the preparation of the claim, with the exhaustive review of the documentation provided by the client, the request or collection of evidence deemed necessary to prove the facts that justify the client’s interests, as well as the drafting of the claim, with a statement of the facts and actions exercised, and the legal grounds for the latter.