Introduction
The incorporation of electronic domicile as a valid means for judicial service of process constitutes one of the most significant advances of Ecuador’s Código Orgánico General de Procesos (COGEP) in terms of modernizing the administration of justice. However, its scope and applicability have not been free from debate.
Recently, a doctrinal position has gained prominence arguing that service of process at a contractually agreed electronic domicile is not applicable when the executive title underlying the action is a promissory note or other negotiable instrument. The central argument of this thesis rests on three premises: (i) that a promissory note is not a contract but a unilateral juridical act; (ii) that the rules governing service of process are matters of public order and strict compliance, which precludes extensive interpretation; and (iii) that the autonomy of negotiable instruments disconnects them from the concept of “contractual agreement” required by Art. 55.1 of the COGEP.
This article examines these premises in light of the Ecuadorian legal system—including provisions of the Civil Code and the Commercial Code that are not usually addressed in this debate—and proposes that a systematic reading of the applicable rules leads to a different conclusion.
The following analysis serves an academic and professional purpose. It does not purport to definitively settle a question that, ultimately, will require resolution by the National Assembly or the National Court of Justice through binding authority. Its purpose is to contribute to the debate with argumentative rigor and to provide normative elements that allow for a more complete discussion.
I. The Statutory Text and Its Context
Art. 55.1 of the COGEP provides:
“Natural or juridical persons who have expressly agreed in a contract to an electronic domicile for service of process shall be served at the agreed email addresses.”
The provision requires two elements: (a) an express agreement, and (b) that such agreement be contained in a contract. The question, therefore, reduces to whether a promissory note—or another negotiable instrument—can constitute the “contract” referred to by the provision, or whether, at least, the rules governing contracts are subsidiarily applicable to it.
II. The Concept of Contract in the Ecuadorian Legal System
The Ecuadorian Civil Code defines a contract in Art. 1454:
“A contract or convention is an act by which one party binds itself to another to give, do, or refrain from doing something. Each party may consist of one or more persons.”
In turn, Art. 1455 distinguishes between bilateral and unilateral contracts, providing that a contract is unilateral “when one of the parties binds itself to the other, who does not assume any obligation.”
From these provisions, it follows that the Ecuadorian legal system does not require bilateral obligations for a contract to exist, and that the legal definition of contract encompasses any act by which one party binds itself to another—a description that bears notable similarity to the mechanics of a promissory note, in which the maker binds himself to pay a sum of money to the payee.
III. The Necessary Distinction: Unilateral Contracts and Unilateral Juridical Acts
It is necessary to rigorously address a doctrinal distinction that is central to this debate: the difference between a unilateral contract and a unilateral juridical act.
A unilateral contract—such as a donation, a loan for use, or a loan for consumption—is an agreement of wills in which, although only one party becomes obligated, its perfection requires the concurrence of two wills: there is an offer and acceptance, there is consent, even though the resulting obligation is unilateral. A unilateral juridical act, by contrast, is perfected by the manifestation of a single will, without the need for acceptance.
A promissory note, as a negotiable instrument, is created by the sole signature of the maker. In this sense, its creation is a unilateral juridical act, not a contract in the strict sense. Anyone arguing that a promissory note is a unilateral contract faces the objection that there is no concurrence of wills at the moment of subscription that would perfect an agreement.
This distinction is doctrinally valid and must be acknowledged with intellectual honesty. However, as developed in the following sections, the fact that a promissory note is not formally a contract does not mean that the rules applicable to contracts do not apply to it on a subsidiary basis, nor that the declaration of will contained therein lacks procedural efficacy.
IV. The Subsidiary Application of Contract Rules to Negotiable Instruments
A. The Commercial Code and the Supplementary Nature of the Civil Code
Art. 5 of the Commercial Code (2019) provides:
“In cases not expressly regulated, the rules of this Code shall apply by analogy and, failing that, those of the Civil Code.”
This provision enshrines a fundamental principle of normative integration: when the special regime governing negotiable instruments does not regulate a matter, the legal operator must resort subsidiarily to the Commercial Code in general and, failing that, to the Civil Code. The Commercial Code contains no specific provisions regarding the establishment of electronic domicile for service of process in negotiable instruments. In the face of this silence, the supplementary rule requires recourse to the general regime.
B. Contract Rules Already Apply to Negotiable Instruments
The subsidiary application of contract rules to negotiable instruments is not a novel theoretical construction but rather a consolidated practice in the Ecuadorian legal system. Various aspects of the legal relationship arising from a negotiable instrument are governed, in matters not covered by the special legislation, by the general rules on obligations and contracts of the Civil Code. By way of example:
The capacity to subscribe a negotiable instrument is determined according to the rules on capacity to contract under the Civil Code (Arts. 1461 et seq.). The rules on defects of consent (error, duress, fraud) set forth in Arts. 1467 to 1475 of the Civil Code are invocable with respect to the subscription of a promissory note. The rules on prescription of actions, in matters not covered by the Commercial Code, are supplemented by the provisions of the Civil Code. Interest rates, in the absence of an express agreement, are regulated according to the provisions of the Civil Code and the Organic Monetary and Financial Code. The principle that a contract is law for the parties (Art. 1561 CC) applies to obligations contained in negotiable instruments.
If the rules on capacity, consent, prescription, interest, and binding force of contracts apply subsidiarily to negotiable instruments, it is difficult to maintain that a procedural rule governing one aspect of the obligational relationship—the form of service of process agreed upon by the parties—should be excluded solely because the instrument containing it is a negotiable instrument and not a contract in the formal sense.
C. The Commercial Code Itself Recognizes Procedural Stipulations in Negotiable Instruments
Art. 81 of the Commercial Code provides that “the place of performance of the obligation shall be that indicated by the respective negotiable instrument.” This provision recognizes that a negotiable instrument may contain stipulations that exceed strictly credititious content and have direct procedural relevance—since the place of performance determines the territorial jurisdiction of the court.
If the legal system accepts that a negotiable instrument may fix the place of performance—with procedural consequences regarding jurisdiction—there is no systematic reason to deny that it may also contain an agreement on electronic domicile for service of process, which operates in the same procedural dimension.
V. The Payee’s Acceptance: The Consent That Perfects the Agreement
The argument that Art. 55.1 requires an “agreement” and that in a promissory note there is no agreement but only a unilateral declaration deserves closer analysis.
It is true that the verb “to agree” evokes a meeting of the minds between parties. And it is true that at the moment of subscribing the promissory note, the maker acts unilaterally. But the legal relationship arising from the negotiable instrument is not exhausted by the act of subscription.
When the payee receives the promissory note, retains it, and subsequently enforces it judicially—by filing an executive action based on it—the payee is accepting the content of the instrument in its entirety. The payee cannot selectively invoke the clauses that are favorable (amount, interest, acceleration clause, place of payment) while rejecting those that are indifferent or inconvenient (such as the maker’s electronic domicile for service of process).
The principle that whoever accepts an instrument accepts its entire content is grounded in the very nature of negotiable instruments: Art. 79 of the Commercial Code provides that “the subscriber, or the person who signs a negotiable instrument, shall be bound according to its literal tenor.” If literality binds the subscriber to the entire content of the instrument, consistency requires that the holder who exercises the instrument also do so according to all of its stipulations.
Thus, while at the moment of creation of the promissory note there is a single will, at the moment of its exercise there are two converging wills: that of the maker who included the electronic domicile and that of the payee who accepts the instrument and enforces it on the terms it contains. This convergence of wills functionally satisfies the requirement of “agreement” demanded by Art. 55.1 of the COGEP.
VI. Literality and Independence of the Negotiable Instrument: Arguments That Reinforce, Not Weaken, the Thesis
The principle of literality of negotiable instruments has been invoked to argue that the electronic domicile stipulation inserted in a promissory note does not satisfy the requirement of a “contractual agreement.” However, this line of reasoning presents an internal tension that warrants attention.
The principle of literality, enshrined in Art. 79 of the Commercial Code, establishes that the content and scope of the obligation incorporated in the instrument is determined by what is written on the document. Certainly, commercial law doctrine has understood that literality refers primarily to the credititious content of the instrument: amount, term, interest, place of payment. However, the Ecuadorian legislator has accepted that negotiable instruments may contain stipulations that exceed strictly credititious content—such as the place of performance with effects on territorial jurisdiction (Art. 81 CCom), the acceleration clause, or instructions for filling in blanks (Art. 82 CCom).
In this context, an electronic domicile clause for service of process is not conceptually different from these other stipulations: it forms part of the express content of the instrument and has procedural consequences. Invoking literality to argue that an express stipulation in the instrument must be ignored is, at the very least, inconsistent.
Similarly, the principle of independence or autonomy of the negotiable instrument—which detaches it from the underlying relationship—reinforces, rather than weakens, the validity of what is stipulated in the instrument itself. If the instrument is autonomous, what is stipulated therein has its own self-sufficient value, without the need to refer to an external contract.
VII. Teleological Interpretation: The Two Purposes of the COGEP
The COGEP was conceived as an instrument for modernizing Ecuador’s procedural system. The incorporation of electronic domicile responds to a specific purpose: to facilitate service of process, reduce procedural delays, and take advantage of technological advances for the benefit of the administration of justice.
Excluding negotiable instruments from the scope of Art. 55.1 would mean that a maker who voluntarily includes an email address for service of process in a promissory note could not be served through that channel, frustrating both the maker’s express will and the modernizing purpose of the statute.
That said, it is necessary to acknowledge that the COGEP does not only pursue modernization: it also guarantees the right to defense and due process. When these two purposes come into tension, the answer should not be the automatic exclusion of a rule, but the rigorous application of its requirements.
The right to defense is guaranteed by effective service of process that reaches the defendant, not by excluding means that the defendant has consented to. What protects the maker is not the inapplicability of Art. 55.1, but the requirement that the agreement was express, unequivocal, and verifiable.
VIII. Practical Reality and Necessary Safeguards
It is legitimate to ask about the practical reality of promissory notes in Ecuadorian commercial practice. Frequently, promissory notes are pre-printed documents where the debtor signs under conditions of informational asymmetry. An electronic domicile clause inserted in fine print, without the maker having understood it, could create situations of defenselessness.
This concern is valid and shared. But the appropriate response is not to declare a rule inapplicable through an interpretation that the law does not support, but rather to require the judge to rigorously evaluate whether the statutory requirements have been met: that the agreement is express and clear, that the email address is verifiable, and that there are reasonable indications that the maker had effective knowledge of the stipulation.
This is precisely the role that the legal system assigns to the judge in exercising adjudicative authority: the point is not to mechanically apply electronic service in all cases, but to evaluate, on a case-by-case basis, whether the requirements of Art. 55.1 have been satisfied.
IX. The Strict Construction Argument: A Conclusion That Does Not Follow from the Premise
It is correct to state that the rules governing service of process are matters of public order and strict compliance. However, the conclusion drawn from this premise—that Art. 55.1 is not applicable to negotiable instruments—does not necessarily follow.
If the contract rules of the Civil Code apply subsidiarily to negotiable instruments by mandate of Art. 5 of the Commercial Code; if the Commercial Code itself recognizes that negotiable instruments may contain stipulations with procedural relevance; and if the convergence of wills between maker and payee functionally satisfies the concept of “agreement”; then the application of Art. 55.1 to a promissory note containing an express electronic domicile does not constitute extensive interpretation, but rather the coherent application of the rule within an integrated legal system.
What is presented as strict construction is, in reality, an exclusionary interpretation that introduces a distinction that the law does not make: the distinction between bilateral contracts (applicable) and negotiable instruments (inapplicable). That distinction has no basis in the text of Art. 55.1 or in any other provision of the COGEP or the Commercial Code.
Conclusion
A systematic reading of the Ecuadorian legal system—integrating the definition of contract in the Civil Code (Art. 1454), the subsidiary application of civil rules to commercial matters (Art. 5 CCom), the principles of literality (Art. 79 CCom) and autonomy of negotiable instruments, the recognition of procedural stipulations in negotiable instruments (Art. 81 CCom), the convergence of wills between maker and payee at the time of exercising the instrument, and the modernizing purpose of the COGEP—leads to the position that Art. 55.1 of the COGEP may be applicable to executive proceedings based on negotiable instruments, provided that the electronic domicile was included expressly and unequivocally in the instrument itself.
It is not denied that the question admits debate. The difference between a unilateral juridical act and a unilateral contract is doctrinally relevant, and the wording of Art. 55.1—in using the terms “agreed” and “contract”—creates an interpretive space that can reasonably be resolved in more than one way.
It is for this reason that, ultimately, it will be for the National Assembly—through a reform that specifies the scope of the rule—or the National Court of Justice—through binding jurisprudence—to determine whether the legislator’s intent was to include or exclude negotiable instruments from the scope of Art. 55.1 of the COGEP.
In the meantime, this analysis aspires to contribute to a debate that deserves greater depth, offering normative arguments that allow legal operators—judges, attorneys, and litigants—to take informed and well-founded positions.
This article reflects the academic position of Moncayo & Almeida Abogados and does not constitute individualized legal advice.
