As entradas com créditos no aumento de capital social, ao abrigo do regime da compensação

Abstract

The work carried out, regards contributions in the course of an increase in the share capital of a company, namely when such contributions are carried out by offsetting credit rights held over the company. We start off by reviewing the different types of subscriptions, legally foreseen in the Portuguese legal order, within the scope of a share capital increase. We then proceed in specifically analysing subscriptions executed with credits held over the company. It so happens, that the Portuguese Commercial Code, enacts article 27.5, which states that new subscriptions, executed with credits, cannot be fulfilled in a compensatory manner. This prohibition raises a series of issues regarding the validity of subscriptions, executed with credits. Therefore, we then compare the views taken on this matter, by our neighbour legal systems, namely in Italy, Spain and France. We naturally focus on the Portuguese view, laying out the main doctrinal positions on this matter, which either support, or reject, the possibility of new entries by offsetting credit rights held over the company. Moreover, we also proceeded in analysing the different alternatives, proposed by authors who sustain such legal prohibition, such as the confusion or novation, for purposes of carrying out an entry subscribed by offsetting such credit rights. In fact, we understand that offsetting credit rights held over the company, in a compensatory manner, is the mechanism that best serves the interests of the parties involved in the capital increase. This will not only benefit the company itself, but also its shareholders and creditors, given that it ultimately results in the reinforcement of the creditor’s biggest capital guarantee: the company’s share capital. Finally, we allude to the admissibility of new entries, subscribed by offsetting credit rights held over the company, within the Insolvency and Corporate Recovery Code (CIRE), and highlight the elevated practical ability of this mechanism, not only for purposes of remedying the company’s imminent insolvency condition, but also for purposes of preventing such situation.

Date of Award	13 Oct 2017
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria de Fátima Ribeiro (Supervisor)