Judgment of the Supreme Court of Justice of 2013-06-04

Standard business clause – Nullity – Good faith– Consumer protection – Interest for late payment

With this judgment, the Supreme Court of Justice considered that the purpose of Decree-Law No. 32/2003 of 17 December was not to regulate commercial transactions with consumers. In fact, in accordance with case law of this court, the purpose of such Decree-Law was to transpose into Portuguese law Directive 2000/35/EC of the European Parliament and of the Council of 29-06, providing for an interest scheme that is more favourable to the creditor in the operations provided for in its articles 2 and 3, in which the parties cannot be consumers.

Under these terms, such scheme, which aims to favour merchants in those transactions in case of delay in the payment by debtors, did not conflict with the provisions of other commercial transactions, in particular of those in which one of the parties is a consumer, which will continue to be subject to the legal scheme in force prior to the same Decree-Law, with the exception of the slight amendment of article 102 of the Commercial Code (hereafter, shortly referred to as "CCom"), introduced by the same Decree-Law, which article continued to be applicable to consumer debtors.

Accordingly, in commercial transactions concluded with consumers it will still be possible to establish a general standard clause whereby, in case of delay in the payment, the debtor becomes liable to pay interest for late payment, in accordance with the previous wording of article 102 of the CCom, referred to in Decree-Law No. 32/2003.

Finally, the Supreme Court of Justice considered that in setting out that this piece of legislation does not apply to "contracts concluded with consumers", article 2(2)(a) of this Decree-Law means, and should be interpreted as meaning, that transactions with consumers are not regulated by such legislation. This conclusion does not imply that article 102 of the CCom, as amended by the same Decree-Law, forms part of the legal framework not applicable to consumers.

Judgment of the Court of Appeal of Lisbon of 2013-05-16

Disregard for the legal personality – Director’s liability – Duties of managers and directors – Shortage of assets

With this judgment the Court of Appeal of Lisbon (TRL) decided that the definition of the duties of company directors vis-à-vis the creditors of the company as "the duty to behave with the diligence of a good and knowledgeable merchant", that is, with the diligence of a "zealous and organised manager", should not be accepted.

In fact, where the culpable action of the director leads to a situation where the assets of the company become insufficient, the director will be liable to the company if such behaviour comprised acts that breached duties arising from the law or the by-laws, but he will not be liable to the creditors of the company, if those acts, although breaching duties arising from the law or the by-laws, did not breach the provisions of those laws and by laws specifically aimed at protecting such creditors.

Therefore, the expression set out in article 78(1) of Código das Sociedades Comerciais (Companies Code) (hereafter shortly referred to as "CSC"), "assets of the company that are insufficient to pay the relevant claims", should be interpreted as meaning simple insufficiency of the available net assets in relation to the outstanding liabilities.

Accordingly, the liability of the director to the creditors of the company, under that same legislation, should be qualified as tortuous liability or extra-contractual liability, since, before the unlawful act, there is no claim vis-à-vis the director.

In accordance with article 79(1) of the CSC, this is, again, a case of tortuous liability, this time, concerning liability for damages caused directly "that is, caused without the interference of the company".

The opinion of this court is that the directors are not liable to third parties and in particular to third creditors, for non-compliance with the company’s obligations.

In case of disregard for the legal personality, there is the possibility – without any specific rule and by imposition of the system – that, in certain situations, the law may switch from the collective to the individual mode, ignoring the formal presence of a legal person.

This disregard is not the consequence of the defunctionalisation of companies, rather it is the consequence of a certain defunctionalisation of the institution of the limitation of liability – whose boundaries are, to begin with, limited by the application of other sets of legal rules or institutions. In any case, as observed by the court, the institution of the disregard for the legal personality does not dispense with the abusive use of the same, in order to delude / harm third parties.