Judgment of the Supreme Court of Justice of 1 July 2014
This judgment concludes that the Insolvency Plan is an alternative corporate recovery measure which aims to satisfy the interests of the creditors, which applies indiscriminately to natural and to legal persons. When the insolvent is a natural person, the fact that the liquidation of its assets within the insolvency proceedings took place without the full payment of the claims, is still not enough to declare the release of the debtor.
In this connection, after the insolvency plan has been fully implemented, the natural persons or legal persons responsible for the debts are released from the sums that have not been paid in this context, provided the plan does not expressly provide for their responsibility for the debts not covered by the said plan. For such reason, insolvency proceedings are only closed, in principle, where the insolvency plan translates into measures for the recovery of the insolvent company, inasmuch as, where the same amounts, rather, to an alternative means of liquidation of the insolvent company’s assets, the proceedings may only be closed with the allotment of the balance resulting from the liquidation of assets.
In the category of claims in a situation of payment default, also referred to as overdue claims, from the standpoint of the liability of the debtors, depending on the nature of the transactions, there is the classification of defaulted claims, of claims in dispute and of write-offs, which include the claims and interest accruing written off from credit accounts, but which are still due for collection. Therefore, renegotiated claims arise from transactions in which credit was effectively granted and that, being in a situation of default, due to a simple delay or already at a litigation stage, on account of the full amount thereof not having been paid under the terms initially agreed on, have, in the meantime, been renegotiated without any additional guarantees and are therefore no longer in a situation of default and are no longer overdue claims. On the other hand, renegotiated claims are also part of the situations which are the subject of relevant monthly reports, to be sent by participating entities to the Bank of Portugal. Since renegotiated claims must be mandatorily reported by participating entities to the Bank of Portugal, the defendants acted in the compliance with a duty, even in the new situation of the renegotiated claims, which justifies the occurrence of the damage arising from the non-granting of credit to the claimants that, as justifiable reason of the fact, excludes the apparent unlawfulness of their conduct. It so happens, however, that in the absence of an express provision to the contrary set out in the insolvency plan, only compliance with such plan releases the debtor and the persons legally responsible, from all outstanding debts of the insolvency, since the persons responsible for the debts would only be released with the full implementation of the insolvency plan previously concluded, which are therefore different, not incompatible, realities. In brief, the transit in rem judicatam of the decision that approves the insolvency plan and the implementation thereof are not incompatible, in spite of the fact that they are different realities.
Judgment of the Supreme Court of Justice of 09 September 2014
This judgment qualifies as atypical mediation contract, as opposed to financial intermediation, the agreement verbally and individually entered into by a former director of a credit institution with a group of shareholders of an economic group, whereby he (the former director) assumes the obligation to advise on an operation of sale of the share capital of such group. This judgment also establishes that the differentiating criterion between the two types of contracts is the interests pursued with their execution: in the case of the mediation, it is the interest of the principals in the sale of the holdings and in the end of a dispute with other shareholders; in the case of the financial intermediation, it is the pursuit of profit by the intermediary that is advising in the operation.
Judgment of the Court of Appeal of Porto of 03 July 2014
This judgment considers voidable the corporate resolution of non distribution of the year’s profit against the qualified majority of three fourths of the votes of the share capital, set out in Article 217 of the Código das Sociedades Comerciais (Companies Code), supporting the understanding that the interests sought by the provision in question can be freely disposed of by the partners, since they do not fall within the public order principle and do not embody any other principles of a mandatory nature. Moreover, this judgment considers that the claimant, co-holder of two shares who intervenes in the case individually and not under an instrument of joint representation, has no legal standing.