The contracts and purchase orders you use with your clients state that any dispute will be submitted to the courts you selected. As of June 29, that clause may not hold before a judge.
As of that date, binding case law establishes that express submission clauses to courts in a specific territory cannot be used to determine territorial jurisdiction in contracts and promissory notes if the other party did not have a real opportunity to negotiate.
Adhesion contracts are those whose terms are unilaterally imposed by one party, without a real possibility for the other party to propose terms that serve its interests.
Although court decision I.10o.C. J/2 C (12a.) originated in cases brought by financial institutions against their debtors, this criterion also applies to other companies that are not necessarily banks. It is enough that one party unilaterally sets the terms of the contract.
If your company uses rigid terms and conditions that it sends to clients and documents credit with contracts and promissory notes that are signed without giving them an opportunity to negotiate, those agreements may be classified as adhesion contracts. Therefore, the cited precedent may apply, especially when you need to enforce payment.
If you designated the courts of Querétaro as having jurisdiction over any dispute arising from the contract, but your client is located in Tijuana, Baja California, and your contract is one of adhesion, you would have to litigate the matter in Tijuana.
The court precedent establishes that, in the case of promissory notes or adhesion contracts where the debtor did not have a real opportunity to negotiate the terms, territorial jurisdiction must favor the right of access to justice of the adhering party. Therefore, the competent court will be that of the debtor’s domicile.
Article 1092 of the Mexican Commercial Code provides that the competent court is the one to which the parties have expressly or tacitly submitted. Article 1093 specifies that express submission requires a clear and unequivocal waiver of the jurisdiction granted by law, designating as competent the courts of the domicile of either party, the place of performance of the obligations, or the location of the asset.
However, that freedom is justified only when both parties negotiate the jurisdiction clause, not when it is unilaterally imposed by one of them. In that case, the selected court may declare itself without jurisdiction under the cited precedent.
It is worth reviewing this before the issue arises.
If you use standard contracts with your clients and want to assess whether your jurisdiction clauses may be disregarded, we can assist you at CEG Legal. Contact us at info@ceglegal.mx.