Time for a little free legal lesson, this time concerning a very popular instrument used for debt collection, namely by services providers, known as the “injunção” (created by Decree-law 269/98, of 1st September).
An injunção is defined as a formal order to pay. It is a very simple, cheap, and quick way of getting a credit recognized. All the applicant/creditor has to do is fill out a simple form online, normally done by a lawyer, with a summary description of the debt. The application will only be sent to the debtor after the judicial fees are paid, which can be either €25.50 or €52.00 depending on the value of the debt. No proof of any kind is required at this time.
An injunção is defined as a formal order to pay. It is a very simple, cheap, and quick way of getting a credit recognized. All the applicant/creditor has to do is fill out a simple form online, normally done by a lawyer, with a summary description of the debt. The application will only be sent to the debtor after the judicial fees are paid, which can be either €25.50 or €52.00 depending on the value of the debt. No proof of any kind is required at this time.
The (in)famous "Citius", birthplace for many an injunção
Though ff you’re the applicant, don’t think that the injunção is a magic bullet. If the debtor does not intend to pay they will oppose it, take it to court, and prolong the process as long as possible. However, in the majority of cases debtors do not contest an injunção (which is what any applicant hopes for).
Call a lawyer if you get one of these in the mail
The debtor has 15 days (consecutive, not working) in order to present a defense in writing or to pay the amount claimed.
If a defense is offered, a trial will be scheduled and both applicant and debtor must offer any legally admissible form of proof (witnesses, documents, etc.). Any defense can be offered, such as the debtor stating that he has already paid off his debt, or that he owes nothing due to creditor breach of contract.
Failing the production of a defense or voluntary payment, the “injunção” gains executive force, meaning it has exactly the same value as an unappealable judicial sentence, and is full irrefutable proof of the existence of that credit/debt. An injunção, from start to executive force, can take under two months.
With this document, the applicant can move for the court to seize the debtors property to make good on his debt, either by seizing cash directly (garnishing wages, apprehending bank accounts) or by selling the debtors property in auction (cars, houses, etc.). Note that in Portugal it is illegal for a creditor to gain property over a debtor’s asset by way of defaulting on a loan and/or payment. The debt can be made good from the proceeds of the sale of the asset, but never by the asset itself.
If a defense is offered, a trial will be scheduled and both applicant and debtor must offer any legally admissible form of proof (witnesses, documents, etc.). Any defense can be offered, such as the debtor stating that he has already paid off his debt, or that he owes nothing due to creditor breach of contract.
Failing the production of a defense or voluntary payment, the “injunção” gains executive force, meaning it has exactly the same value as an unappealable judicial sentence, and is full irrefutable proof of the existence of that credit/debt. An injunção, from start to executive force, can take under two months.
With this document, the applicant can move for the court to seize the debtors property to make good on his debt, either by seizing cash directly (garnishing wages, apprehending bank accounts) or by selling the debtors property in auction (cars, houses, etc.). Note that in Portugal it is illegal for a creditor to gain property over a debtor’s asset by way of defaulting on a loan and/or payment. The debt can be made good from the proceeds of the sale of the asset, but never by the asset itself.
Something to break up the monotony
Unfortunately this next step (the “acção executive”) is a relatively slow, costly, and many times, unprofitable experience.
What to take away from the injunção? Use it if a debtor has yet to pay despite constant promises to do so. It’s cheap, fast, and effective. And as a debtor, always offer a written defense if an injunção is received, otherwise your situation will become significantly more complicated.
For example: I have a friend that recently received an envelope from the court, and promptly decided to ignore it. He wasn’t new to the debt scene, and had faced threatening letters from lawyers and debt collection agencies before. A few weeks pass and he receives another, and then another, this second one being quite bulky, though it also goes in the cupboard unopened. Out of sight, out of mind.
Good or bad, depending on your situation
A few weeks pass and he decides to show me the envelopes. I open them immediately. The first was the injunção application; the second is letter stating that due to no defense being offered the injunção has gained executive force. The bulky envelope was a court notice stating that his house had been apprehended by court decision and was going to be put up for sale, and he had 20 days to offer a defense.
I opened the envelope on the 27th day.
Funny, despite being such a simple figure in Portuguese law, I haven’t even touched the surface. And this must be a thoroughly boring post for 99% of you.
I opened the envelope on the 27th day.
Funny, despite being such a simple figure in Portuguese law, I haven’t even touched the surface. And this must be a thoroughly boring post for 99% of you.
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