By: Anaís Montero

Express consent is required for the collection of foreign currency debts.

This was established by the Civil Cassation Chamber of the Supreme Tribunal of Justice in Ruling No. 809, dated December 10, 2025, which clarified the terms and conditions under which Article 128 of the Law of the Central Bank of Venezuela operates ope legis.

The Chamber analyzed the case under Docket No. AA20-C-2025-000541, stating:

“Thus, it is observed that the obligation claimed by the plaintiff constitutes a debt in U.S. Dollars, whereas the amounts in Bolivars indicated in the prayer for relief are only ‘…expressed for reference purposes in this complaint…’ as expressly stated in the pleading. In this regard, it must be determined whether a fundamental document was submitted with the complaint establishing the payment of obligations in U.S. Dollars or permitting its use as a unit of account.

Regarding the collection of monetary obligations in foreign currency, this Chamber—in Ruling No. 464 dated September 29, 2021 (Case: Philippe Gautier Ramia v. Promotora Key Point, C.A., et al.), reaffirmed in Ruling No. 434 dated July 25, 2024 (Case: América Rendón Mata v. Servicios Incorporados, C.A.)—has held the following:

‘…In effect, the obligation in dispute giving rise to the claim for legal fees was created by the parties’ will through a contract incorporating a special stipulation. This stipulation modified the legal regime of the monetary obligation, allowing it to be expressed in a currency other than the legal tender of the Bolivarian Republic of Venezuela. Pursuant to Article 128 of the Law of the Central Bank of Venezuela, this may be exceptionally agreed upon in contracts where not expressly prohibited by law.

Consequently, the scope of Article 128 of the Law of the Central Bank of Venezuela is restricted to obligations arising from a legal act that includes a stipulation by virtue of which the obligor previously accepts payment in a foreign currency (either as a unit of account or as an effective payment clause). Furthermore, it is indispensable to specify the currency to be used; all of which must be agreed upon by the parties prior to or at the inception of the obligation.

Conversely, said article is not applicable to non-contractual obligations where the debt arises from a legal fact to which the law directly assigns such consequence—such as indemnification for torts, negotiorum gestio, unjust enrichment, common property maintenance contributions, reimbursement of expenses to agents or administrators, and specifically, as in this case, the payment of court costs and legal fees.

In such obligations, the debtor is bound by law to pay a sum of money once the legal fact is verified, without any special stipulation modifying the legal regime of the debt. Therefore, it shall be denominated and payable in the legal tender in effect at the time the obligation arose.

In the latter case, seeking the judicial or extrajudicial collection of such obligations as foreign currency debts is not only improper for lack of legal basis, but could also constitute the crime of usury if the exchange rate differential exceeds the legal interest rate limits applicable to the obligation.

Consequently, the performance of monetary obligations not arising from a contractual stipulation that complies with Article 128 of the Law of the Central Bank of Venezuela is governed by the rules for legal tender obligations, strictly observing the limitations of the nominalist principle (Article 1,737 of the Civil Code) and the prohibitions against obtaining interest exceeding legal limits (See Constitutional Chamber ruling of January 24, 2002, Case: Indexed Credits).

In these obligations, the nominal adjustment of the debt only proceeds through judicial indexation as recognized by jurisprudence—calculated from the date the complaint is admitted until the date of effective payment, using the National Consumer Price Index published by the Central Bank of Venezuela as the factor.

In the case at bar, the plaintiff seeks professional fees under a foreign currency regime without a professional services contract in which the defendant previously accepted this modality, rendering Article 128 of the Law of the Central Bank of Venezuela inapplicable.

Therefore, based on the foregoing, the claim is not only improper but presumably violates public policy provisions regarding the effects of monetary obligations, as it implies a claim for an exchange rate profit that could exceed legal interest limits and the prohibition of usury.

This leads to the conclusion that the lower court’s error in declaring the action inadmissible does not warrant the annulment of the judgment, as the underlying claim is clearly improper, making it futile to remand the cause for a new judgment.

Accordingly, the present complaint must be dismissed. It is so decided…”.

(Bolding and underlining ours).

Thus, the Chamber rules unequivocally:

“The criteria from these two decisions show that this Chamber has provided that when a plaintiff claims a foreign currency obligation without a contract in which the defendant previously accepted this modality, Article 128 of the Law of the Central Bank of Venezuela is inapplicable for the performance of the obligation. It is essential that the obligor previously accepts the payment modality in foreign currency, whether as a unit of account or as an effective payment clause.”

The Chamber expressly maintains this criteria regarding foreign currency collection:

“In this sense, any demand for the collection of a foreign currency obligation must be supported by a physical instrument where it was previously determined that said obligation generates an enforceable cost in foreign currency.

Thus, it must be evidenced in the text of an instrument that subsequently allows the debt to be enforceable. Although the general rule is that any judicial claim may be admitted and litigated before a competent court to clarify rights and exercise the right to defense and due process, in cases where the collection of foreign currency debts is sought, an instrument containing an express clause is required.”

(Bolding and underlining ours).

Now then, for illustrative purposes, Article 128 of the Law of the Central Bank of Venezuela is cited:

“Payments in foreign currencies shall be settled—absent a special agreement—with the equivalent in legal tender at the current exchange rate at the place and on the date of payment.”

Considering the transcribed criteria and cited provisions, to demand payment in foreign currency, such act must be expressed under the terms and conditions stipulated by the parties to be fully enforceable, including the special agreement mentioned in Article 128 of the Law of the Central Bank.

To consult the decision, click the following link [Document in Spanish]: https://historico.tsj.gob.ve/decisiones/scc/diciembre/351734-000809-101225-2025-25-541.HTML