Legal alert no. 32
It was published, in the Portuguese Official Gazette, on June 26th, Decree-Law n. 75/2017 (the “Decree-Law”) which approves the legal regime of the appropriation of the pledged asset under the commercial pledge.
The Decree-Law is approved within the scope of the “Programa Capitalizar”, a strategic support plan for the capitalization of companies, the resumption of investment and the revival of the economy, aiming at promoting more balanced financial structures, reducing the liabilities of viable companies, although presenting high levels of debt, as well as improving the conditions of access to financing of micro, small and medium-sized enterprises.
In this context, and although n.2 of article 675 of the Portuguese Civil Code already allows the awarding by the creditor of the asset which has been provided as guarantee, and the majority of the doctrine also recognizes in this way the validity of «pacto marciano», there was not, until now, in Portuguese Law, a special procedure allowing the implementation of such faculty in concrete.
With this framework, and with the objective of promoting the possibility of traders to establish freely, by contract, the implementation conditions of n.2 of article 675 of the Portuguese Civil Code, article 2 of the Decree-Law foresees that “the parties may agree, in the pledge agreement to guarantee the commercial obligation in which the collateral provider is a trader, that the secured creditor, in case of non-compliance, takes ownership of the pledged asset or right, by the value resulting from the evaluation carried out after the maturity of the obligation, and the evaluation method and criteria shall be established in the agreement”.
In the referred provision, it is also provided that the pledge should be mandatorily entered into by a written document including the recognition of signatures, as well as the obligation of the secured creditor to repay to the collateral provider the amount corresponding to the difference between the value of the pledged asset or right and the amount of the guaranteed obligation.
Finally, it should also be highlighted that in accordance with n. 5 of article 2 of the Decree-Law, the legislator clarified that, by this new legal regime, it is not intended to threaten the validity and implementation of the contractual stipulations that have been established before the entry into force of this Decree-Law, which shall continue to be recognised under the general terms resulting from the civil law and under the applicable specific contractual terms.
The present Decree-Law was subject to public consultation between March 17th and April 14th, 2017 and it enters into force in July 1st, 2017.
To access the full version of Decree-Law no. 75/2017, please click here.