Actionis paulianae against insolvent debtor – insolvency effects of granting the action

Fernando Silva Pereira

Keywords

Actio pauliana, debtor`s insolvency; par conditio creditorum principle; insolvency effects of the granting of the action.

Abstract

This article discusses the problem of knowing whether, if an actio pauliana is filed to contest an act performed by an insolvent debtor (or one that has been declared insolvent in the meantime), the effects of the granting of this action will benefit only the claimant creditor (who has the right to the execution of the asset directly in the third party acquirer's legal sphere - Article 616(1) CC - competing with the other creditors of the third party acquirer) or whether, on the contrary, should the object of the contested transaction return to the debtor's legal sphere, entering the insolvent estate and thus benefiting all of the insolvent debtor's creditors (principle of par conditio creditorum). In the previous legal regime, the CPEREF, there was a figure, the collective actio pauliana, which disappeared in the current CIRE, being absorbed by the regime of "unconditional resolution". In addition to a problem of articulation of the action of actio pauliana (singular) with the regime of resolution for the benefit of the insolvent mass (see Article 127 CIRE), there is the problem of the insolvency effects of the granting of such action. Article 127 CIRE, in particular paragraph 3 of this article, leaves doubts on this matter, and there is no total uniformity in doctrine and jurisprudence.