Obtaining a favourable judicial or arbitral decision is often only one stage of the process. When the losing party does not voluntarily comply with what has been ordered, the creditor may resort to enforcement (execução), a separate court action, with its own rules and formalities, aimed at obtaining compulsory performance of the obligation. Enforcement proceedings also serve to enforce other enforceable titles, such as authentic documents (public deeds or authenticated private documents) or negotiable instruments, such as cheques, bills of exchange and promissory notes. This article forms part of the Litigation area of Araújo & Associados.
What an enforceable title is
To resort to enforcement, the creditor must hold an enforceable title (título executivo), i.e., a document to which the law attributes enforceable force, and which embodies the right of enforcement, that is, the creditor’s right to enforce against the debtor’s assets for effective satisfaction of the claim. Under Article 703 of the Code of Civil Procedure, enforceable titles include, among others: final judgments ordering a party to perform; documents drawn up or authenticated by a notary or other competent entity; negotiable instruments, even mere unsecured acknowledgements of debt, such as bills of exchange, promissory notes or cheques; and documents to which a special law attributes enforceable force.
Requirements of the obligation being enforced
It is not enough to hold an enforceable title – the obligation it records must be certain, due and liquid, pursuant to Article 713 of the Code of Civil Procedure. If the obligation does not meet these requirements in light of the title, enforcement begins with steps aimed at making the obligation certain, due and liquid, before moving on to the later stages of the enforcement proceedings.
The role of the enforcement agent
Once enforcement has been commenced, the proceedings are, as a rule, conducted by an enforcement agent (agente de execução), responsible for serving the debtor, seizing assets, and selling the seized assets, paying creditors from the proceeds of that sale. The enforcement agent’s involvement is intended to speed up enforcement proceedings, relieving the court of steps that can be carried out by this entity.
Forms of enforcement proceedings
Enforcement may have different purposes, including payment of a sum of money (the overwhelming majority of enforcement proceedings brought), delivery of a specific thing, or performance of a positive or negative act, following different forms of proceedings depending on the purpose and the enforceable title concerned. In enforcement for payment of a sum of money, a distinction is generally made between the summary form of proceedings, applicable to stronger enforceable titles or those of lower value, and the ordinary form of proceedings, applicable to other situations. There are also special forms of proceedings, such as enforcement of maintenance.
Limitation period of a debt recognised by judgment
An aspect that is often unknown but relevant is that, when a right is recognised by judgment or by another enforceable title, the limitation period applicable to that right becomes the ordinary period of twenty years, laid down in Article 309 of the Civil Code, pursuant to Article 311 of the same Code, even if the right was originally subject to a shorter limitation period before being recognised by the judgment. Service on the debtor in the enforcement proceedings itself also interrupts the limitation period then running, pursuant to Article 323 of the Civil Code.
Opposition to enforcement – debtor’s objections
The debtor is not left without means of defence in the face of enforcement brought against them. Through objections to enforcement (embargos de executado), the debtor may oppose enforcement, relying on grounds such as the non-existence or non-enforceability of the title, performance of the obligation, or limitation of the right being enforced, among other grounds provided for by law. Lodging objections is subject to its own time limit, so service of the enforcement proceedings should receive the debtor’s immediate attention.
Enforcement of judgments and other related matters
Enforcement may originate from decisions given following ordinary civil proceedings, described in the article Civil procedure in Portugal – guide to the process, or from an arbitral decision, whose enforceability is equated with that of court decisions, as described in the article Arbitration or court – which route is more suitable. The enforcement of decisions against public bodies also has specific features of its own, related to the regime described in the article Public disputes – administrative litigation in Portugal.
About Araújo & Associados
Established in 1980, with offices in Porto and Lisbon, Araújo & Associados assists clients in the enforcement of judgments and other enforceable titles, in Portuguese, English, French, German and Spanish.
Frequently asked questions about enforcement of judgments
I have a judgment in my favour, but the other party does not pay - what do I do?
You can bring enforcement proceedings, based on the judgment as an enforceable title, asking the court to compel performance of the obligation, notably through the seizure of the debtor’s assets.
How long do I have to enforce a judgment before the debt becomes time-barred?
As a rule, twenty years, since once the right has been recognised by judgment it becomes subject to the ordinary limitation period laid down in the Civil Code, even if it was originally subject to a shorter period.
Who is responsible for seizing the debtor's assets?
As a rule, the enforcement agent – an enforcement solicitor (solicitador de execução) or a lawyer with that qualification – who conducts most of the steps in the enforcement proceedings, including serving the debtor, seizing and selling assets.
Can the debtor oppose enforcement brought against them?
Yes, through objections to enforcement (embargos de executado), on grounds such as the non-existence or non-enforceability of the title, performance of the obligation, or limitation of the right being enforced, among others provided for by law, within the applicable time limit.
Can an arbitral award also be enforced in the same way as a court judgment?
Yes, arbitral awards have the same enforceability as decisions of the courts of first instance, and can serve as the basis for enforcement proceedings on the same terms.
What happens if the debtor has no seizable assets?
Enforcement may be suspended until seizable assets are located, within the time limits and conditions provided for by law, a situation that must be assessed case by case based on the information available about the debtor’s assets.
Contact us
For more information on enforcement of judgments, or to book a legal consultation, you can contact us through our Porto or Lisbon offices, by telephone, email or via the form on the website. We provide legal advice in Portuguese, English, French, German and Spanish.