The Commercial Court of Appeals Rejected the Possibility of Serving Notice of a Claim in a “Special” Domicile as an “Ad Litem” Domicile

In re: “Alba Cía Argentina de Seguros S.A. vs. Maiolo Julio Cesar et al / ordinary proceeding”, the Court of Appeals on Commercial Matters upheld the ruling of a lower court and denied the plaintiff the possibility of serving notice of the complaint in the “special” domicile –agreed with the defendants in an insurance contract in which their signatures had been certified by a notary public- as if it were the “ad litem” domicile set up for the proceedings.

The general principle under our procedural law obliges the plaintiff to serve the complaint with the delivery of a subpoena in the domicile of the defendant where he or she actually lives. Exceptionally, as provided in the last paragraph of Section 40 of the Argentine Code of Civil and Commercial Procedure (“CPCCN”) and in Section 1028 of Argentine Civil Code, case-law accepts serving the complaint in the “special” or “contract-based” domicile as long as it has been agreed within a public instrument or a private one with its signatures certified by a notary public.

The particularity of this case is that the plaintiff not only intended to serve the complaint in the “special” domicile but also intended to give to such domicile the nature of an “ad litem” domicile instead of a “denounced” domicile.

This difference is important because if the domicile had been given the nature of an ad litem domicile the court officer would have been relieved of complying with the provisions specially prescribed by Sections 339 and 141 of the CPCCN regarding service of notice of complaints. Those Sections set forth that, if the defendant is not found in the place, a notice must be given for him or her so that he or she waits for the notice the following day and, if he or she is not found the day after either, the complaint will be delivered to another person in the house or left at the doorway.

The Court of Appeals did not admit that request and considered that, since the case referred to the notification of a complaint, it was not appropriate to give the nature of an “ad litem” domicile to the “special” domicile agreed under the contract.

It is not clear whether the Court of Appeals ruled out the possibility that, following current prevailing case-law in the matter, the notification of the complaint could be made in the “special” domicile but with the nature of a “denounced” domicile, although certain reference to the general rule that sets forth that service of the complaint shall be conducted in the place where the defendant effectively lives, leaves space to construe that this alternative has also been rejected.

Moreover, one of the paragraphs of the ruling of the Court of Appeals limited the uses that the parties may give to the “special” domicile and explained that it may be used to serve “out of court notices aiming to define the position of the parties in certain legal relationship, such as termination statements, compliance requests, requests of explanations, declarations of default, etc.”

Summing up, although the ruling of the Court of Appeals seems to be well grounded by denying the possibility of serving notice of the complaint in the “special” domicile with the nature of an “ad litem” domicile, it provides some ambiguous considerations that leave unclear whether it is possible to serve notice of the complaint in the “special” domicile with the nature of a “denounced” domicile, displacing therefore the domicile of the defendant in which he or she effectively lives.

Allowing that service of notice is carried out in the “special” domicile as a “denounced” domicile provides an adequate balance between the autonomy of the parties, who freely agreed to set up a “special” domicile for the reception of notices; and the defendant’s right to a fair defense, since the defendant would not be prevented from the benefit of the special procedure set forth by the legislator to summon him or her to court.