The legal requirements that apply to the form of a contract between a seller and a debtor depend to a large extent on the nature of the contract (e.g. B in the case of a credit agreement concluded by a bank to a customer, a contract between a utility and a customer, etc.). For example, the granting of credit facilities to consumers is subject to the general rule that the contract in question must be in writing. In cases where the assignment is not made in accordance with the Securitization Act and the seller becomes insolvent, the insolvency agent may, in its sole discretion, choose whether or not to perform the debt purchase agreement, as that contract is suspended due to the declaration of insolvency. Portuguese law generally does not require that the assignment of receivables be subject to the same law as that applicable to assigned receivables. However, in our experience (and that of the Portuguese authorities), assignment contracts for claims of Portuguese origin are generally governed by Portuguese law. The assignment of receivables arising from a debt purchase agreement is generally considered to be an actual and effective assignment of an offeror`s receivables to the assignee, which takes effect between the parties from the date of expected entry into force and in which the seller is released from all its obligations relating to the receivables contained in the securitization pool. 7.5 Non-petition clause. Will a court in your jurisdiction give effect to a contractual provision of an agreement (even if the applicable law of this Agreement is the law of another country) that prohibits the parties from: (a) bringing legal action against buyer or any other person; or (b) the commencement of insolvency proceedings against Buyer or another person? In addition, according to the Securitisation Act, an assignment of credit or risk is considered securitised if the transferee is a securitisation vehicle. This means that synthetic securitisations (as standard market transactions in which a bank (originator) acquires a credit guarantee for a loan portfolio from an investor through the execution of a derivative contract or hedging agreement) are not considered securitisation transactions within the meaning of the Securitisation Act (although these structures may be established in Portugal). Thus, the Securitisation Act regulates a simplified and tax-neutral process for securitisation transactions according to a two-stage approach: Decree-Lei No 193/2005 is therefore applicable to securitisation obligations, in particular as regards the requirements relating to the registration of securitisation obligations in the relevant clearing schemes and the exemption of income generated by non-resident holders of such securitisation obligations. In this context, the payment of interest and capital on securitisation certificates is exempt from Portuguese income tax, including withholding tax, provided that the bondholder concerned is considered to be a Portuguese non-resident without a permanent establishment in Portugal. This exemption does not apply to non-resident natural or legal persons or companies where the country of residence of the person or company is a jurisdiction as defined in Ministerial Decree No.
150/2004 of 13 February 2004 (as amended) and with which Portugal does not have a double taxation agreement or a tax information exchange agreement in force, provided that the conditions and procedures for proving the nature of the residence are fulfilled. In order to benefit from the exemption, bondholders must provide the direct registration unit with sufficient proof of non-resident status before the relevant interest payment date, in accordance with the procedures prescribed by Decree-Law No 193/2005. If, for any reason, a withholding tax is levied on interest payments and the holder of the relevant bond can benefit from the exemption from income tax, a refund procedure is available under Decree-Law No. 193/2005. Under the Portuguese legal framework for consumer credit, financial institutions can only accelerate defaulting loans (or terminate the contract in question) if more than two payments (more than 10% of the total amount of the total outstanding) are due and only after the debtor has been informed, giving him at least 15 days to pay the amounts due and expressly inviting him to the possibility of accelerating The Loan Notice. Other rights generally concern information and content obligations, the right to declare the contract null and void or voidable if the information is not provided, etc. According to the Portuguese Civil Code, the general rule is that the granting of credits also includes the transfer of any type of guarantee or other form of guarantee, unless the corresponding assignment contract provides otherwise. If certain formalities apply to the creation of guarantees, these formalities must normally also be completed for a valid transfer of security.
Please note our responses to questions 4.2 and 4.3 above regarding the transfer of mortgages under the Securitization Act and the response to question 5.5 below. 3.2 Example 1: If (a) the seller and the debtor reside in your jurisdiction, (b) the claim is subject to the law of your jurisdiction, (c) the seller sells the claim to a buyer located in a third country, (d) the seller and the buyer choose the law of your jurisdiction to settle the contract for the purchase of claims, and (e) the sale meets the requirements of your jurisdiction, Will a court in your jurisdiction recognize such sale as effective against the seller, the debtor and other third parties (such as the creditors or insolvency administrators of the seller and the debtor)? We draw your attention to the fact that the Securitisation Act requires a true and complete assignment which is not subject to any conditions or conditions. In addition, neither the originator nor any of its group companies may give guarantees or improvements in connection with the assignment or assume responsibility for payments made by the underlying debtors. Therefore, the seller who retains credit risk, interest rate risk or collection control (for his own benefit) or a right of redemption or a right to a residual profit could be considered to collide with such a genuine sales concept. If the debtor is not a consumer, the assignment may be considered effective if the order for payment procedures prescribed by the law applicable to the receivables contract are followed. With regard to the control of debt collection, we would also like to note that if the seller is a credit institution in the context of a securitization, the buyer usually asks that seller to act as a collection account bank and debt service provider and to ensure the receipt of the recovery of borrowers on behalf of the buyer, because it is clear, however, that all the amounts, which the service provider holds in this way, do not concern the service provider (not even in a service event) and rather belong to the buyer in accordance with the securitisation law. In this sense, an assignment under the Securitization Act is generally an advanced assignment. With regard to the redemption, we would like to point out that in the event of latent defects or false insurance and guarantees relating to the assets, the seller would generally be liable under the Securitisation Act. There are numerous legal and administrative degrees providing for consumer protection measures, including Decree-Law No 220/94 of 23 August 1994, which specifies the minimum level of information to be included in loans, such as . B the annual percentage rate of charge and related information.
Recently, Decree-Law No 74-A/2017 of 23 June on credit agreements relating to residential immovable property (which transposed Directive 2017/17/EU) set out a number of conditions to ensure consumer protection and transparency, in particular as regards the provision of pre-contractual information. For other notable consumer rights in enforcement proceedings, we refer to the answer to question 1.2, D. above. 7.4 Limited Recourse Clause. Will a court in your jurisdiction apply a contractual provision in an agreement (even if the applicable law of that agreement is the law of another country) that limits the parties` recourse to this agreement to the available assets of the debtor in question and provides that the debtor`s debt will be extinguished to the extent of any loss of profits? If the debtor is a consumer and the Rome I Regulation or the Rome Convention apply, the choice of the seller`s country to which the contract of claims applies does not deprive the debtor of the protection offered by the mandatory provisions of Portuguese law. .