Is there a procedure specially intended for claims or debts that will in all likelihood be uncontested (order for payment procedure)?
Yes, there is a specific order for payment procedure in Portugal.
The procedure applies whenever a party wishes enforceable status to be conferred on a request for fulfilment of pecuniary obligations arising from contracts amounting to no more than €14 963.94 or obligations arising from commercial transactions, irrespective of their value. This entails producing a document that can be used as a basis for enforced judicial recovery of the claim.
For the purposes of this procedure, a commercial transaction is deemed to be any business “between undertakings or between undertakings and public entities, irrespective of their nature, form or denomination, that gives rise to the supply of goods or the provision of services against remuneration” (Article 3(a) of Decree-Law No 32/2003 of 17 February 2003).
Regarding commercial transactions, the procedure does not cover “contracts concluded with consumers”, “interest on other payments that were not made to remunerate commercial transactions” or “payments made for the purposes of compensation for civil liability, including payments by insurance companies” (Article 2(2) of Decree-Law No 32/2003).
As stated in the answer to the previous question, the upper limit on claims for pecuniary obligations arising from contracts is €14 963.94.
For commercial transactions, there is no upper limit.
Use of the procedure is optional, i.e. it is not imposed on the creditor.
The legal rules on the order for payment procedure do not exclude cases where the debtor lives outside Portugal.
“The application for order for payment shall be submitted, at the creditor’s discretion, either to the registry of the court at the place where the obligation is to be fulfilled or to the registry of the court at the debtor’s place of residence” (Article 8(1) of the rules annexed to Decree-Law No 269/98 of 1 September 1998).
The procedure is governed by specific rules laid down in the relevant legal instrument and, in areas not covered by those rules, by the general rules on jurisdiction.
“Where there are courts with specialised jurisdiction or specific jurisdiction, the application shall be submitted to the registry in accordance with the respective rules on jurisdiction” (Article 8(2) of the rules cited above).
“Judicial registries or general registries may be set up to deal with payment order proceedings” (Article 8(4) of the rules cited above). General registries (Secretarias-Gerais) have been set up accordingly in Lisbon and Oporto.
Under Article 10 of the above-mentioned annex to Decree-Law No 269/98, the claimant must in the application for an order for payment:
You must use the application form approved by the Ministry of Justice.
The model form is also available on request from court registries responsible for receiving applications for order for payment.
You do not have to be represented by a lawyer in this procedure, but there is nothing to prevent claimants from appointing a legal representative, if they so wish.
The legal instrument laying down the rules for the order for payment procedure merely requires claimants to present succinctly the facts underlying their claim.
However, if the claimant wishes the case to be pursued successfully as a declaratory judicial action - should notification of the defendant be thwarted – he/she must set out meticulously and clearly the facts on which the claim is based.
It is not compulsory to present written evidence of the claim.
An application may be rejected only if:
(Articles 10 and 11 of the rules annexed to Decree-Law No 269/98).
There is no preliminary assessment of the grounds of the request, as under this procedure the application is not submitted to any judicial body, i.e. a court in the proper sense of the term, but is merely examined by a justice official.
“An appeal against a decision to reject an application may be lodged with the judge or, where the court has more than one judge, with the duty judge” (Article 11 of the rules annexed to Decree-Law No 269/98).
If the request for an order for payment is accepted, the defendant has 15 days (from the date when notification is deemed valid) to oppose the claim.
The statement of opposition must be submitted in duplicate.
Where there is more than one claimant, the defendant must provide the same number of copies of his statement of opposition as there are claimants living in separate households, unless they are represented by the same legal representative.
If the defendant challenges the claim in good time, enforceable status is not granted, i.e. the enforcement decision requested is not drawn up.
The case will then be dealt with automatically as a declaratory action.
If, after being notified, the defendant does not submit a statement of opposition, the registrar shall attach the following words to the application for an order for payment: “This document has enforceable effect” (Article 14(1) of the rules annexed to Decree-Law No 269/98). This means that the document can be used as a basis for enforced judicial recovery of the claim.
The only exception to this will be if the request does not match the amount or the purpose of the procedure, in which case the registrar may not make such a statement.
The granting of enforceable status by the registrar does not depend on the claimant taking any specific initiative, but happens automatically once it is clear that no statement of opposition has been lodged under the procedure.
This decision cannot be appealed against.
However, it should be borne in mind that the granting of enforceable status does not constitute a jurisdictional act, i.e. intervention by a court with a view to addressing a private dispute, but is simply an act generating an extrajudicial document, which can therefore be challenged within the scope of the enforcement measure with regard inter alia to whether or not the obligation to be enforced is due.
Further information can be obtained at the following websites:
Last update: 02-11-2006