Decision of the Supreme Court of Justice, No 117-B/1999.P1.S1., of 2015-01-08 Transforming companies – Partner – Resignation – Liquidation of the company – Judicial ruling – Feasibility – Decision

In this decision, the Supreme Court of Justice (“STJ”) was asked to give ruling on the feasibility of the decision that was presented as an enforceable title, which was delivered within a special procedure of liquidation of an equity interest presented by a creditor partner against a debtor company.

Due to the existence of contradictory decisions, STJ intended to clarify if a decision delivered within a special procedure of liquidation that established the value of the partner’s equity interest is feasible.

The Supreme Court of Justice supports that the answer to the abovement ioned question will depend on the underlying material situation. Article 137 of the Commercial Company Act (notwithstanding the fact that STJ’s decision concerns to the article in the version approved by Decree-Law No 262/86, 2 September, the same reasoning may be applied to the version currently in place) granted the partner a right to present a request for resignation if he did not approve the company’s resolution aiming the transformation of the company. This resignation request did not grant the partner a potestative right, as the company, after said request, could decide on one of multiple options (amortise the quota, acquire it, ensure its acquisition by a partner or a third party).

Therefore, having the resigning partner opted to take action against the company in special procedure of liquidation of his equity interest, the fact that a decision establishing the value of the equity interest was delivered does not grant the partner the right to demand from the company said amount. For this reason, the decision delivered based on these facts does not compose an enforceable title, as it does not recognize the resigning partner a credit claim over the company, that corresponds to the value of his equity interest.