Judgment of the Court of Appeal of Lisbon of 02-06-2015

Interpretation of the intentions of a commercial company – Attribution of communications by members of corporate bodies – Signatures

In the context of this judgment, the Court was called upon to decide on a situation in which the legal representative of the Defendant, a commercial company, during a negotiation meeting with the Plaintiff, also a commercial company, with which it would enter into a service agreement, with a view to the latter company giving up its requirement of a bond, stated that the payments it would be making would depend only on receipt of the price and solvency of a third party, the end beneficiary of the services, the Defendant having subsequently refused payments to the Plaintiff, invoking compensation with receivables it held by virtue of other previous contractual relationships.

The Court, due to the variety of means and methods of communication of the legal persons through their bodies, recognised that the content of these communicational acts and the intentions involved are not always easy to understand or to be attributed to the legal persons. The attribution of communications by representatives of the legal persons must therefore take into account the specific circumstances involved, the legal fact from which the intention derives, including all those which may influence the legal decision, the limit being the consideration that the legal person aims to boost the economy and social dynamics, without this being fraudulent and illusory.

Applying this opinion to the case in question, the bench of judges understood that the words uttered by the representatives of the legal person at the negotiation meeting could be a legal commitment, by the legal person, to act in a particular way or with a view to a particular position.

Judgment of the Court of Appeal of Porto of 08-07-2015

Special Revitalisation Procedure – Refusal to approve the plan – Equality of creditors - Insolvency

In this judgment, the Court of Appeal of Porto gave its opinion on whether, in the context of a special revitalisation procedure (PER), it is lawful to refuse to approve the plan because a creditor, with a claim asserted and recognised, has not been allowed to take part in the negotiations.

The Court expressed its opinion that the special revitalisation procedure aims to achieve the continuation or recovery of the debtor, however it must do so taking into account imperative rules, any results not authorised by law and general principles, including the principle of good faith in negotiations and the principle of equality of creditors.

In the insolvency plan, the principle of equality of creditors does not rule out different treatment of creditors, only forbidding differentiation without grounds and reasonable justification. Thus, its infringement represents a non-negligible infringement and is a well-founded reason for refusing approval.

In view of the above, approval of the special revitalisation plan must be refused when a creditor has validly shown its intention to take part in the negotiations and it has not been allowed to do so, while other creditors have been allowed to, when this distinction has not been justified by objective reasons worthy of consideration.

Judgment of the Court of Appeal of Lisbon of 25-06-2015

Right to information of partners – Special actions for judicial inquiry – Winding-up and liquidation of a company

In this case, the Plaintiff brought a special action for a judicial inquiry against the Defendant, a public limited company of which the Plaintiff was a partner, the windingup, liquidation and cancellation of registration of the Defendant company having occurred after the action was brought.

With the dissolution of the company through registration of the completion of its liquidation, any interest of the former partners in exercising a right to information, regarding any acts carried out in connection with the management of the company, can no longer be fulfilled through a judicial inquiry since such right is a right of the partner in relation to the company that presupposes the existence of the company and the partner status.

The dissolution of the company determines not only the expiry of its legal and judicial personality, but also determines the expiry of partner status and hence the right to information. Thus, the Court concluded that registration of the completion of liquidation determines the expiry of proceedings, the suit being dismissed, in a case intended to exercise the right to information.