An insolvency is considered culpable when the insolvency situation has been created or aggravated as a result of the intentional or grossly culpable conduct of the debtor, or its administrators, in law or in fact, in the three years prior to the beginning of the insolvency proceedings.
This classification may cover both natural and legal persons.
The insolvency should always be considered culpable when natural persons (where applicable) or, in the case of legal persons, their administrators, in law or in fact, have:
- Destroyed, damaged, rendered useless, concealed or made to disappear, in whole or in considerable part, the debtor’s assets;
- Artificially created or aggravated liabilities or losses, or reduced profits, causing, in particular, the conclusion by the debtor of ruinous transactions for their benefit or that of persons specially related to them;
- Purchased goods on credit, reselling them or delivering them in payment at a price appreciably lower than the current price, before the obligation is satisfied;
- Disposed of the debtor’s assets for personal benefit or for the benefit of third parties;
- Carried out, under the cover of the legal personality of the company, if applicable, an activity for personal benefit or for the benefit of third parties and to the detriment of the company;
- Used the debtor’s credit or assets contrary to the debtor’s interest, for personal benefit or that of third parties, namely to favour another company in which they have a direct or indirect interest;
- Pursued, in their personal interest or in the interests of a third party, a loss-making operation, despite knowing or should have known that this would most likely lead to a situation of insolvency;
- Failed to comply in substantial terms with the obligation to keep organized accounts, maintaining fictitious accounts or double accounting or committing an irregularity with relevant prejudice to the understanding of the debtor’s patrimonial and financial situation;
- Repeatedly failed to comply with its duties of presentation and collaboration.
The verification of any of these situations will result in the classification of the insolvency as culpable, without admission of evidence to the contrary.
On the other hand, only in relation to legal persons, or natural persons who are sole proprietors, it is presumed, with the admission of evidence to the contrary, the existence of serious fault when they have failed to comply with:
- The duty to apply for a declaration of insolvency; and/or
The obligation to draw up the annual accounts, within the legal period, to submit them to due inspection or to deposit them with the commercial registry office. - A obrigação de elaborar as contas anuais, no prazo legal, de submetê-las à devida fiscalização ou de as depositar na conservatória do registo comercial.
The classification of the insolvency as culpable may entail several consequences, namely:
- The disqualification for the administration of third-party assets, for a period that may last between 2 and 10 years;
- The disqualification from exercising trade for a period that may last between 2 and 10 years, as well as from occupying any position of the holder of the body of a commercial or civil company, association or private foundation of economic activity, public company or cooperative;
- The loss of claims on the insolvency or on the insolvency estate and the order to return the assets or rights already received in payment of these claims;
- The obligation to compensate the creditors of the debtor declared insolvent up to the maximum amount of unsatisfied claims, considering the strength of their assets.
