Ruling of the Court of Appeal of Lisbon of 2016-07-13
General Meeting – Notice – Burden of proof
On this ruling, the Court of Appeal of Lisbon has analyzed the validity of a resolution approved in a general meeting of a private limited company, having decided for the exceptional application of paragraph a) of number 1 of article 56 of the Portuguese Companies Code, which leads to the nullity of the resolution, considering that the notice for the general meeting is not dully, nor in good faith, made when directed to the domicile of a partner that, beforehand, informed the company of his absence for a determined period of time. However, the notice has been directed to the partner’s residence within that period of time, making it impossible for the partner to be aware of the notice and, consequently, aware of the respective general meeting. Therefore, the notice was not lawfully made and, consequently, the resolution approved within the general meeting is null.
Ruling of the Court of Appeal of Coimbra of 2016-07-13
Suspension of a company resolution – General Meeting – Voting
The Court of Appeal ruled that article 386 of the Portuguese Companies Code is not a peremptory norm and may, therefore, be revoked by the law or by the by-laws of the company. The ad quem Court also ruled that the chairman of the general meeting is responsible for the canvassing of the resolution results and should pronounce the negative or positive direction of the ruling, declaring the end of the general meeting. Additionally, the Court also determines that all resolution taken after the ending of the general meeting shall be considered null, once the general meeting no longer has deliberative powers.
Ruling of the Supreme Court of Justice of 2016-06-16
Promissory agreement – Public Deed – Interpretation of the negocial declaration
According to the fundaments of the Court, the establishment of a deadline for the entering into of the promised agreement is not an essential element of the promissory agreement, and, therefore, the parties can estipulate a fixed term or a non-fixed term, being that the difference between them is measured by the essentiality of the term within the relevant circumstances, essentiality that should be searched within the parties will. Therefore, the will of the parties shall indicate if the course of the term is meant as a definitive breach or if, on the other hand, still allows for a late fulfillment. In the case analyzed by the Court, the parties of the promissory agreement did not establish a consequence for the course of the term, reason why the Court ruled that, even after the course of the term, there was still interest in the entering into of the promised agreement.
Concomitantly, the Court has also ruled on the fact that the promisor-seller has modified or transformed in substantiam the target of the promise, considering that the promisorseller has, therefore, guiltily made the compliance with the installment impossible, reason why the promissory-buyer has the right to demand double of the amount payed has a down payment.