There is no (orthodox) way to have a fast trial, only a less slow and smoother one (there are too few courts for so many trials).
The first answer to the question I ask in the title, would be “nobody”. Because at least in normal situations, nobody wants a trial. Neither fast nor slow.
But life experience shows us that in this civilized world (whatever that means) anyone can be involved in a court dispute. Therefore, it is reasonable to take precautions so that in case of being involved in a legal dispute, it will be less time-consuming.
In the world of private law, i.e., that which regulates relations between individuals, there are two instruments that allow a less time-consuming trial: the transaction (for civil contracts), and the conventional procedure (for commercial contracts).
What is the difference between a commercial contract and a civil one? The easy answer is to say that the commercial contract is the one entered into between merchants and/or commercial companies, for speculation purposes; and the civil contracts are all the other ones. But obviously between these two contracts there is an infinity of gray areas, on which rivers of ink have been written (almost as many as there are to explain the “free will” of mankind). That is why, in order to clarify any doubts in a specific case, it is best to consult your trusted lawyer.
For commercial contracts: Article 1051 of the Commercial Code expressly allows the parties in a contract to agree on a “conventional procedure”. That is to say, that the parties agree on the terms of the eventual trial they may have (a ” procedural mode”), if there is a controversy regarding the business contract they are celebrating.
Evidently this ” procedural mode” that is agreed upon has its limits. The “essential formalities of the procedure” must be respected (due notice to the defendant at the beginning of the trial, opportunity to prove, to argue, and to resolve a final resolution in writing, grounded and motivated).
Within the respect to the “essential formalities of the procedure”, interesting covenants can be made to accelerate the trial and have more effective precautionary measures. For example:
- Being able to make the initial notification (the subpoena) by e-mail, so that there is no need to go looking for physical addresses. I know this may be counter-intuitive in the formalist and paper culture we have, but a Terminal Court in Jalisco already supported such a pact (AD 6/2018 of the 2nd Collegiate Court in Civil Matters of the 3rd Circuit).
- If the controversy will deal with the possession of a property, to agree that from the beginning of the trial the defendant must give the possession of such property, without the need for the plaintiff to give bail, and establishing details that will facilitate the diligence of taking possession.
For civil contracts. Likewise, a procedure can also be agreed upon, but by means of a different instrument: a transaction contract. Which can be executed as if it were a judgment (Art. 477 Code of Civil Procedures of Jalisco).
The transaction is a particular contract, because it cannot be used to give birth to a contractual relationship; it can only be used to avoid a controversy or to put an end to a dispute, derived from an already existing contractual relationship. In other words, the transaction contract can only be celebrated, if there is already a previous contract.
For example, a civil relationship in which the transaction contract is very common is in leases. Because in a transaction it is possible to establish covenants that facilitate the removal from the property of the lessee who has defaulted on its obligations.
But a lease cannot be born in a transaction. If you are going to enter into a lease, and you want to have the benefits of a transaction (covenants to facilitate the execution), you must make two moves:
1st move: On “day 1” sign a lease contract where an obligation is agreed upon that the lessee will not comply with (such as paying 6 months’ rent in advance “on day 2”).
2nd move: On “day 3”, upon the “tenant’s failure” to pay the 6 months’ rent in advance, a transaction is signed in which the parties “make reciprocal concessions to avoid a controversy”, and there they say to each other: You failed to pay me the rent in advance “on day 2”; it doesn’t matter, I forgive you. I let you pay me the monthly rent, but in exchange you are going to give me these execution facilities in case you fail to pay the rent (and there the “procedure is agreed upon”).
What did you say, champ? that it seems more complicated to draw the shortcut, than to go the normal way? Well, yes, it does. But at the end of the day, it is more convenient to invest time in tracing the shortcut…
