In order to ensure the (coercive) payment of previously recognized debts, to which the existence of an enforceable title is underlying[1], it is sometimes necessary to sell assets or rights owned/titled by the debtor.
To this end, the assets/rights are previously seized[2] and subsequently sold, thus generating liquidity capable of paying the respective debts.
We emphasize that this explanation is extremely generic, with several particularities that do not need to be mentioned here, as they are not the subject of analysis.
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Said sale of the seized assets/rights may take several forms (namely: a) Sale through proposals in a sealed letter; b) Sale on regulated markets; c) Direct sales to people or entities that have the right to acquire the goods; d) Sale by private negotiation; e) Sale at auction establishments; f) Sale in public deposit or similar; g) Sale by electronic auction), this decision being made by the Execution Agent, taking into account the position previously assumed by the Executor, the debtor and the creditors with security over the goods to be sold ( cf. no. 1 of art. 811. º and no. 1 of art. 812 of the CPC).
In turn, regarding the legally established preference criteria , paragraph 1 of art. 837 of the CPC that, except in the case of goods that must be sold on regulated markets - namely, financial instruments and the goods that have a quotation on them -, or goods that, by law, must be delivered to a certain entity, or had promised to sell, with real effectiveness, to anyone who wishes to exercise the right of specific execution - a situation in which the sale is made directly to them under the terms legally stipulated or contractually determined - the sale of immovable property and seized movable property is preferably carried out in electronic auction.
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Now,
First of all, for the purposes of regulating the terms of the electronic sale of seized goods, Ordinance No. 282/2013, of August 29 , is relevant, which regulates various aspects of civil enforcement actions, namely subsection III of Section V of Chapter III – arts. 20th to 26th.
To this end, art. 20th of the aforementioned Ordinance, electronic auction is understood as the method of sale of seized goods, which takes place on an electronic platform accessible on the Internet, designed specifically to allow the bidding of goods to be sold in the execution process, under the terms defined in this ordinance and system rules that may be approved by the platform's managing entity and approved by the member of the Government responsible for the area of justice.
To proceed with any offer, the user must register in advance, in order to ensure the complete, unambiguous and true identification of each person registered as users of the platform. ( see art. 21 of the aforementioned Ordinance)
As for duration , art. 22 of the aforementioned Ordinance that “The day and time of opening and ending of each electronic auction are established by the managing entity of the electronic platform, with such deadlines being published on the aforementioned electronic platform, at least, five days in advance of the its beginning.”
Regarding offers , it should be noted that only offers with a value equal to or greater than the base bid value of each item to be sold will be accepted, and that, once entered into the system, they cannot be withdrawn . ( see paragraphs 2 and 3 of article 23 of the aforementioned Ordinance).
If the bidder does not make payment, the regime provided for in art. 825th of the CPC, ie,
“the execution agent, after consulting those interested in the sale, may:
a) Determine that the sale is null and void and accept the proposal for the immediately lower value, with the proponent losing the value of the deposit constituted under the terms of paragraph 1 of the previous article; or
b) Determine that the sale is null and void and sell the goods through the most appropriate method, with the proponent or preferred remissioner not being allowed to acquire the same goods again and losing the value of the deposit constituted under the terms of paragraph 1 from the previous article; or
c) Settle the liability of the proponent or preferred remittance, with the seizure of sufficient assets to guarantee the missing amount, plus costs and expenses, without prejudice to criminal proceedings and being simultaneously carried out in the process itself. for payment of that amount and additions. ”.
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Furthermore,
In addition to the CPC and the aforementioned Ordinance, it is also worth mentioning Order No. 12624/2015, of November 9 , which defines the Chamber of Solicitors as the managing entity of the electronic auction platform and approves the rules of the system approved by that entity .
From the outset, the link through which the aforementioned platform will be accessible is defined, ie, www.e-leiloes.pt ( see no. 2 of article 1 of the aforementioned Order).
Furthermore, and with special relevance, in relation to duration , paragraph 1 of art. 7th of the aforementioned Order that
“a) If a proposal is submitted within the last five minutes preceding the initially set deadline, the deadline will be that of registration on the platform of the last bid, plus five minutes;
b) The cycle of submitting bids and subsequently deferring the deadline only ends after five minutes have passed since the submission of the last bid.”
Regarding the exercise of rights by third parties, art. 13th of the aforementioned Order that the preferors or redeemers, as well as any person with a legitimate interest in the sale of the goods or who may be affected by that sale, must exercise their rights directly in the execution process.
It is also worth highlighting the fact that there are several circumstances that could make the acquisition of the asset/right through an electronic auction unfeasible , namely prior payment of the debt or the conclusion of an agreement to pay the outstanding debt; the subsequent exercise by a third party of the right of preference or remission; the legal complaint deemed valid with regard to the sale decision; the declaration of insolvency or the PER, as well as the death of the debtor.
On the other hand, the rule is that the goods will not have any guarantee and the description presented on the electronic platform – which will have documentary support in its genesis – may not correspond to the reality of the same, with the risk, as a rule, being borne by the purchaser.
As for values, the value of the good/right (or lot) will be whatever is determined within the scope of the aforementioned process, and through this process the other values to be considered within the scope of the sale will be assessed. ( see al. o) of no. 1 of art. 2nd of the aforementioned Order);
It should be noted that the aforementioned decision, provided for in paragraph 1 of art. 812 of the CPC, will also have as its object the base value of the goods to be sold and the possible formation of lots, with a view to the joint sale of seized goods.
As for real estate, the base value will be the highest between the VPT and the market value.
As for other assets, the market value will be considered.
In turn, to determine the “market value”, the enforcement agent may take the necessary steps to establish the value of the asset, when he considers it advantageous or when one of the interested parties so wishes.
- cf. paragraphs 2 to 5 of art. 812 of the CPC.
Thus, once the value of the good has been defined, it will be defined
the opening value , corresponding to 50% of the base value ( see al. p) of no. 1 of art. 2nd of the aforementioned Order); It is
the minimum value for which the good will, as a rule, be sold, corresponding to 85% of the aforementioned value ( see al. q) of no. 1 of art. 2nd of the aforementioned Order).
It should be noted that bidding for a value equal to or greater than 50% and less than 85% will correspond to a “conditional bid”, which “ is not considered immediately for award purposes, but can be subsequently used in the execution process as if it were a proposal to purchase an asset for sale by private negotiation” – cf. al. i) paragraphs 1 and 2 of art. 2nd of the aforementioned Order.
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Final note:
It should also be noted that, in accordance with the provisions of art. 17th of Order no. 12624/2015, of 9 November, the www.e-leiloes.pt platform can also be used to carry out the sale, not only of goods seized within the scope of enforcement proceedings in which it has been designated enforcement agent ( cf. no. 2 of article 1 of the aforementioned Order), but also in others where the use of an electronic auction platform is justified, namely:
a) Enforcement proceedings in which a bailiff has been appointed;
b) Execution processes processed by other entities with executive capacity;
c) Insolvency proceedings.
Legislation mentioned:
Grades:
[1] Pursuant to paragraph 1 of art. 703rd of the CPC
“For execution, the following can only serve as a basis:
a) Conviction sentences;
b) Documents drawn up or authenticated, by a notary or by other entities or professionals with competence to do so, which imply the constitution or recognition of any obligation;
c) Credit instruments, even if merely unsecured, provided that, in this case, the facts constituting the underlying relationship are contained in the document itself or are alleged in the executive application;
d) Documents to which, by special provision, executive force is attributed.”
[2] The regime is essentially found in arts. 735th to 783rd of the CPC.
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