Contratos de garantia financeira

: da aparente legitimação do pacto comissório para o penhor financeiro ao abrigo do Decreto-Lei n.º 105/2004

Abstract

The present study surveys an analysis of the prohibition of the commissory agreement in the Portuguese legal system, implemented by the legislator in article no. 694 of the Civil Code, in addition to the regime enshrined by the Law n.º 105/2004, of May 8th, on financial guarantee agreements, which apparently allows, in the context of the financial pledge, the recourse to the commissary pact, which translates in the hypothesis of, in the event of default, the object of the guarantee being transferred to the creditor.
We intend to initiate our study based on the analyses of the mechanism of the commissory pact itself, its reason of being, its relevance in the current economic and social context, dealing with its relationship with the figure of the marciano pact. We will then proceed to an analysis of both the Directive no 2002/47/CE, of June 6th, and the Law nº. 105/2004, aiming to explore the theoretical and practical issues raised by these diplomas, seeking, in depth, to answer the question of knowing if, firstly, the prohibition of the commissory pact covers the constitution of new real guarantees (collateral), and secondly, the question of knowing if the Law nº 105/2004 implements a real exception to the prohibition of the commissory agreement, provided for in article 694 of the Civil Code.

Date of Award	8 Jul 2022
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria de Fátima Ribeiro (Supervisor)