Appropriation of pledged asset under commercial pledge legal regime
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On the 1st of July 2017, new rules concerning the appropriation of the pledged asset under commercial pledge came into force, foreseen in Decree-Law no. 75/2016, of 26th July.
These new rules expressly foresee the faculty of, within the scope of a pledge agreement as guarantee of a commercial undertaking in which the guarantor is a trader, the parties agreeing that the secured creditor (credor pignoratício), in the event of default, may make his the pledged asset or right, for the value resulting from the assessment to be carried out upon maturity of the undertaking (pacto marciano), the method and criteria of the assessment being established in said agreement, which must be executed in writing with on-site recognition of the signatures.
Notwithstanding, this right of appropriation cannot be agreed when there is a pledge of a higher ranking over the asset or right to be pledged within the commercial pledge agreement.
In the event that the value of the pledged asset or right is higher than the undertaking’s guaranteed amount, the secured creditor is bound to reimburse the provider of the guarantee the amount corresponding to such difference.
The appropriation of the pledged asset or right, as referred above, does not prevent the parties from agreeing that the pledged asset or right is to be awarded to the secured creditor, for the value determined by court, under the terms already foreseen in the Portuguese Civil Code, or to agree to its extra-judicial sale.