I - Introductory note
As is well known, the general guarantee of benefits/obligations is the debtor's assets, which may ultimately be seized in order to enforce the obligation in an enforcement proceeding.
Now,
If there is a common claim, the debtor can, in principle, dispose of the assets as he pleases.
However, in certain circumstances that may jeopardize the subsequent effective fulfilment of the obligation, the creditor, in order to safeguard his claim, may use various mechanisms, including an action for a declaration of nullity, subrogation, a pauper's objection and seizure.
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II - The action (purpose and parties)
The impugnação pauliana, the action which is the subject of this text, consists of a legal action through which creditors can obtain the ineffectiveness of a given legal transaction in order to “revert” it with effects before the creditor(s) and, in this way, the latter can coercively obtain compliance with the obligation. It should be noted that the successful outcome of the action does not determine the destruction of the impugned act, but aims to eliminate the damage caused to the patrimonial guarantee, and once the damage has been repaired, there is nothing to prevent the validity of the act - in the remaining part - from subsisting.
Thus, in principle, the respective creditor(s) will be a legitimate active party, and the selling debtor and the acquiring third party(ies) will be a legitimate passive party, with the intervention of all of them being necessary.
With regard to the choice of this action, it should be noted that, under the terms of Article 615(1) of the Civil Procedure Code, the nullity of the act being challenged does not prevent the action from being successful.
This is because, on the one hand, sometimes proving the necessary requirements for a Paulian challenge to be successful is manifestly easier than for actions aimed at declaring legal transactions null and void, and, on the other hand, because the nullity of the transaction allows other creditors to compete with the Plaintiff in the respective action, whereas, as will be seen, a Paulian challenge takes effect for the exclusive benefit of the challenging creditor (relative ineffectiveness).
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III - Presuppositions
The prerequisites for its exercise are
a) the existence of a claim prior to the act or, if later, the act having been carried out maliciously with the intention of preventing the satisfaction of the future creditor;
b) a reduction in the patrimonial guarantee of the claim (through an act which is not of a personal nature and which does not have unseizable assets as its object);
c) impossibility or aggravation thereof for the full satisfaction of the claim;
d) a causal link between the act which is the subject of the pauliana challenge (b)) and the impossibility or aggravation of full satisfaction of the claim (c)).
- cfr. 610 C.C..
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IV - The burden of proof
On the one hand, it is up to the creditor to prove the existence of the claim and other requirements id. in supra III, while it is up to the debtor or third party interested in maintaining the business to prove that the obligor has attachable assets of equal or greater value. - cfr. art. 611 C.C..
In the case of an onerous act (e.g. purchase and sale, payment in kind, etc.), it will also be necessary for the creditor to allege and prove bad faith - i.e. awareness of the damage the act causes the creditor - on the part of the debtor and the third party.
In the case of a gratuitous act (e.g. donation), the action will be upheld even if the debtor and the third party acted in good faith, and these are the acts most commonly challenged under the Pauliana procedure.
In this case, the principle is revealed according to which those who do not fulfill their obligations will not be able to make donations either (nemo liberalis nisi liberatus).
However, third-party purchasers may dispose of the assets transferred to them, it will be necessary to verify the requirements id. in III and, in the case of a transfer for consideration, the bad faith of the seller and the subsequent purchaser (and so on) - see Article 613(1) of the Civil Code.
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V - The effects
If the action is well-founded, the creditor is entitled to restitution of the assets “to the extent of his interest”, and may even execute them directly on the assets of the person obliged to restitute the assets, to which end he may seize their assets in executive proceedings brought against the original debtors, and carry out other acts to preserve the guarantee of assets, such as seizure - see Article 616(1) of the Civil Code.
This action has the advantage that, because it only benefits the contesting creditor, the creditor can be compensated without the competition of the other creditors.
The existence of bad faith is also relevant for the purposes of the consequences of third parties for creditors. If the third party purchaser(s) act in bad faith, they will also be liable for the deterioration or perishing of the assets sold to them, even if this is due to unforeseeable circumstances, unless they can prove that this would have occurred in either circumstance.
If they act in good faith, the third party purchaser(s) will be liable to the exact extent of their enrichment.
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VI - The limitation period
This right must be exercised by the creditor(s) within a maximum period of 5 years from the date of the contested act (conclusion of the transaction and non-registration of the same), and only benefits the creditor(s) who have requested it (cf. no. 4 of art. 616 and art. 618, both of the C.C.).
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VII - Final notes:
(1) the claim may or may not be included in an enforcement instrument, or may or may not be overdue (i.e., for example, the deadline for fulfilling the obligation may still be running without it being possible to enforce it); (see Article 614(1) of the Civil Code);
(2) the impossibility or aggravation of full satisfaction of the claim may not lead to insolvency or the current impossibility of fulfilling the obligation, but to the substitution of other easily deteriorated or consumable items;
(3) the creditor whose obligation is subject to a suspensive condition may, if the requirements of the pauliana challenge are met, require the debtor to provide security (cf. Article 614(2) of the Civil Code);
(4) in the context of insolvency proceedings, the insolvency administrator may not bring an action to challenge pauliana, but must use the resolution for the benefit of the insolvent estate.
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