In insolvency proceedings, certain transactions entered into before proceedings opened may be challenged if they prejudiced creditors or fall within a category specified by law. Articles 117–122 of Law No 85/2014 establish the special regime. Not every pre-insolvency transaction is fraudulent, and proximity to the opening of proceedings does not automatically make it voidable.

Which transactions may be challenged?

Article 117 permits challenges to fraudulent acts or transactions detrimental to creditors entered into during the two years before proceedings opened. It also identifies specific categories with different conditions and look-back periods, including:

  • gratuitous transfers within the statutory two-year period, subject to the exception for humanitarian sponsorship;
  • transactions during the preceding six months where the debtor’s performance manifestly exceeded what it received;
  • certain transfers to creditors, creation of preferential rights and early payments, subject to the six-month period and specific statutory conditions;
  • transactions or obligations intended to conceal or delay insolvency or defraud a creditor, under the conditions and period specified by law;
  • certain transactions during the preceding two years with persons having the relationships to the debtor identified in Article 117(4).

The period is calculated against the opening date and the particular statutory category. The rebuttable presumption of fraud applies to the acts and transactions specified in Article 117(2); it is not a general presumption covering every agreement in a “suspect period”. Article 119 excludes avoidance of a transaction carried out in the ordinary course of the debtor’s current business.

Who may bring the action, and by when?

The special action is brought before the insolvency judge. The judicial administrator or liquidator normally brings it within one year from expiry of the period set for preparing the Article 97 report, but no later than sixteen months after proceedings opened.

If the practitioner does not act, Article 118 allows the creditors’ committee to bring the action. A creditor holding more than 50% of the claims admitted in the proceedings may also do so. Standing and the actual deadline must be checked against the file and relevant dates.

What must be analysed and proved?

Identify the transaction, date, parties, transferred property or performance, and the legal basis relied on. Relevant evidence may include:

  • the contract, annexes, payment records and proof of performance;
  • market value and the relationship between what each party provided;
  • shareholder records, control structure and connections between the debtor and counterparty;
  • financial statements, accounting records, correspondence and corporate decisions;
  • the chronology against the debtor’s financial difficulties and opening of proceedings;
  • the acquirer’s good faith and knowledge of the debtor’s position.

Some elements are rebuttably presumed for particular statutory categories. In other situations, intent or prejudice must be supported by evidence. Accounting analysis and valuation can clarify amounts and financial flows, but do not replace examination of all the legal conditions.

Consequences of a successful action

A successful action restores the prior position under the statutory rules. Existing encumbrances at the time of transfer may be reinstated as provided by law. The acquirer may have to return the asset or, where return is impossible, the value determined under Article 120.

The Act distinguishes good-faith and bad-faith acquirers. A good-faith acquirer returning the asset or value may have a claim against the debtor’s estate under Article 120. Bad faith must be proved and affects restitution and distribution rights.

Article 121 imposes additional conditions for recovery from a subsequent acquirer, including the relevant requirements concerning payment of equivalent value and knowledge, or what the acquirer should have known, about the risk of avoidance of the original transfer.

Avoidance is different from personal liability

An Article 117 action seeks to avoid a debtor’s transaction and restore the asset or value to the estate for the collective proceedings. An Article 169 liability action has a different purpose and conditions: it concerns persons who contributed to insolvency through the conduct specified by law.

The remedies should not be confused. Select the legal basis and evidence according to the actual facts.

Conclusion

Assessing avoidance in insolvency requires identification of the statutory category, look-back period, action deadline, standing, evidence of prejudice or fraud and consequences for third parties. An ordinary transaction does not become voidable merely because it preceded insolvency. The documents, chronology and precise statutory conditions determine the assessment.

General information based on the consolidated legislation consulted when the article was updated. In a particular case, check temporal application of the law and the documents in the insolvency proceedings.

Official sources