Often in life of commercial companies, the management (or administration) has to make important decisions and take risks to society. What are the limits for corporate management?
The Commercial Companies Code and other Portuguese legislation establish the rules and values that must be fulfilled by the management when they make decisions. Currently, there is no doubt that corporate managers are required to comply with Corporate Governance, that is, a set of principles that should guide the conduct of the manager, first adopted by the American Law Institute, in 1992. In Portugal, Corporate Governance regulations were also created to control the power and incentives of managers. With the implementation of corporate governance practices, it is intended to regulate the relations between the management or the boards of directors and the partners or shareholders.
First of all, article 64 of the Portuguese Companies Code establishes that managers are obliged to perform two main duties: duty of loyalty and duty of care.
What is the duty of loyalty?
The duty of loyalty requires the manager of the company that always decide towards the interests of society, considering the long-term interests of the partners and considering other relevant concerns for the sustainability and continuity of society, such as its employees, customers and encumbrancer.
We can realize the duty of loyalty in various duties: neutrality, moderation in collecting financial benefits, not to act when there are conflicts between personal interests and the interests of society, the prohibition of competition, not ownership for himself business opportunities of society, among others.
What is the duty of care?
The duty of care obliges managers to manage society with care, which includes, for example, availability, vigilance, competence and knowledge. In fact, the manager must have time, interest, seek information and have knowledge of the activity of society. Obviously, compliance with such a duty of time availability does not mean that the manager can not engage in other activity.
He will be able to do so as long as he is able to manage his time and can take an active part in managing society’s life. As for knowledge, it is not required that the manager be required to have deep technical knowledge of finance, taxation, law, or other areas such as engineering. However, he should seek information with those who have this deep technical knowledge, contracting his services and clarifying the doubts that he has.
It will also be very important the supervision or attention that the manager (manager) should provide to the economic and financial evolution of society not only in the short term but also in the medium and long term, considering the national and international evolution of the market where society acts.
What are the limits of managers’ duties?
Every day, managers make decisions about managing the company’s assets, choose business partners, and sign commercial contracts.
The manager must properly prepare his decision, so that this decision will be a rational and reasonable decision in the concrete circumstances of time, market and opportunity of society. However, the manager does not have to choose the most profitable decision for society. This is only required the manager to opt for a reasonable decision even if it later proves not to be the most profitable.
In conclusion, the commercial and business risk is inherent in the activity of the company, so not always the decisions of managers can achieve this success, although they are reasonable and prudent decisions.
When a family member passed away, there are several legal issues that need to be addressed and decisions to be made. One of these decisions is the question of acceptance or rejection of inheritance.
To be an heir, it is necessary to be considered by the Law as such, namely, to be spouse, children, grandchildren, parents or grandparents, and eventually brothers, nephews, uncles or cousins. Or, if there is a will, have been indicated as heir in this document.
The first idea to have is that no one is forced to accept an inheritance. But once you accept the status of heir, this decision becomes final and can not be revoked. Therefore, it is very important that the heir thinks with serenity and clarity about what is best for him.
Acceptance of inheritance can be express or implied and must be exercised within 10 years from the date of knowledge that is heir.
What is implicit and expressed acceptance of inheritance?
Any physical or legal act that may indicate that the heir intends to become the owner or holder of the deceased’s property.
For example, the relative begins using the car of the deceased, using the keys of the deceased’s house to pick up mail or simply watering the garden and checking the state of conservation of the property. All these acts practiced by the heir are a true declaration that he accepts the inheritance and starts to exercise the possession of the inheritance.
In the express acceptance, the heir declares in written document that it is his intention to accept the inheritance. To do this, it is sufficient to send a letter to the representative of the heirs or to the executor of the will.
The refusal of inheritance what is it?
When the heir does not want to accept the inheritance, what does he have to do? He will have to declare by written document that he refuses the inheritance. The refusal of the inheritance is irrevocable, that is, the decision can not be changed later. Therefore, it is convenient for the heir to think well before making the decision.
The heir who refuses the inheritance, if he chooses, may appoint another relative also heir in concrete, who will gain his share in the inheritance. If he says nothing in the act of refusal, his share of the inheritance will be distributed to the next heir (or heirs) in the line of succession. For example, when the father dies, the son can refuse the inheritance indicating his brother as beneficiary of the inheritance (refusal with mention of the heir); or if he says nothing in the refusal, his share of the inheritance will be attributed to his son (grandson of the deceased).
For the decision to accept or deny inheritance, it is important to think that this decision is irrevocable and that it will include all inheritance. This means that the decision must consider all the assets (real estate, automobiles, bank deposits, jewelry, furniture, etc.) and all liabilities (all debts and charges). It is not possible to accept only real estate inheritance and to deny inheritance debts. If the liability exceeds the asset, the heir only has to pay the liability up to the value of the asset.
In order to better understand it, we present the following example. The inheritance liability amounts to € 50,000.00 and the inheritance asset only reaches the total value of € 30,000.00. The heir will only be called to pay the debts of the inheritance up to the total value of € 30,000.00. The remaining € 20,000.00 of liabilities will remain unpaid, without the heir having to pay with his own assets. The personal assets of the heir will never be used for the payment of inheritance debts.
Considering that this issue is important, it is advisable to follow up by an Advocate who will advise the heir to make the most appropriate decision.
Portugal and India have deep historical relationships. Until 1961, the territories of Goa, Daman, Diu, Dadra and Nagar Haveli, were on Portuguese domain, which is why the citizens born in those territories until June 3, 1975, are considered Portuguese citizens.
The territory of the Portuguese State of India was integrated into the Indian Union on December 20, 1961. Until that time, all citizens born in Portuguese India (Goa, Daman, Diu, Dadrá and Nagar-Aveli) are considered Portuguese citizens. Those who were born there until June 3, 1975 (date of independence) are also considered Portuguese of the former State of India, but they will have to prove that they were not domiciled in any of the former colonies at the time of their independence, so that maintain their Portuguese nationality.
Trade and cultural relations between Portugal and India – the value of Startup’s
This recent past is an added value for the current trade and cultural relations between the two countries. On the one hand, India has remarkable economic, industrial, social and cultural growth. On the other hand, Portugal is an excellent gateway to the European Community market, especially in the near future after Brexit, and also to the Portuguese-speaking African Countries market. It should be noted that Mozambique and India also have ancestral links among their population, and these two countries are now also developing cooperation agreements.
Thus, Portugal represents an excellent investment opportunity for India, especially in renewable energies, construction, infrastructure (roads, ports, airports), defense (drones, robotics, cargo planes), food processing and logistics, tourism , hotels and real estate.
Portugal has affirmed itself in Europe and in the world as an excellent country for the development of startup companies, due to the investments made in the last decade in qualification of human resources, infrastructures and technology, which offer enormous opportunities for those who intend to launch or invest in new Business.
The Portuguese Government has recently launched a vast program of support for entrepreneurship and development of Startups, which include various measures of financial support, cooperation and sharing of resources, more favorable taxation of capital gains obtained by investing in Startups, as well as , residence permit visas for foreign entrepreneurs who wish to invest in Portugal. And of course, we can not forget the Web Summit conference that in recent years has been held in Portugal.
How to live, live or work legally in Portugal?
The requirements to obtain a residence visa
One of the steps taken by Portugal to strengthen relations with India was the simplification of the visa regime for Indian students, scientists and entrepreneurs. In January 2017, the Portuguese Prime Minister, visiting India, announced an agreement between the two countries to simplify the granting of residence permit visas through simplified administrative procedures.
For those interested in starting or developing a Startup company in Portugal, the Portuguese Government created the Startup visa. This visa is granted:
- to the entrepreneur even if he has not yet started the business
- the entrepreneur who has already launched a startup in his country and wants to install it in Portugal.
For this residence permit visa is required that the entrepreneur has not had regular residence in the Schengen area in the recent past, can not have criminal records; has aged 18 years old, finally, has sufficient funds in a bank account in the amount of € 5146.08 per year / per person.
The requirements for Portuguese nationality
The acquisition of Portuguese nationality for citizens born up to 00 hours on 03 June 1975 in the territories of Goa, Daman, Diu, Dadrá and Nagar-Aveli is established in Portuguese legislation. Portuguese nationality also extends to their spouses, children and grandchildren, even if the relative has already passed away.
To be able to acquire Portuguese nationality by citizens born in the territories of Goa, Daman, Diu, Dadra and Nagar Haveli, it is necessary to prove the quality of Portuguese citizens and shall proceed to the transcript of his birth records with the Portuguese Registry. They will therefore have to present at the Portuguese Central Records of several documents, including birth registration certificates, marriage, death certificates (if applicable), all properly apostilled and translated into Portuguese language.
In conclusion, it can be said that the attribution of citizenship to citizens born in the territories of Goa, Daman, Diu, Dadrá and Nagar-Aveli and their spouses and descendants is a way of reestablishing historical ties with the Portuguese community in India; as well as a strong mechanism to promote cooperation between the two countries in the development of trade, scientific and technological relations.
With the divorce or separation of the couple, it is a generalized idea that the spouse who leaves the family home, loses the right to the family home. This idea is totally wrong, as we shall explain.
Divorce always involves several issues to be dealt with between the couple, one of them what to do to the family home. The separation or divorce always has the consequence of the rupture of the life in common between the couple, that is to say, one of them has to leave family house.
The family home is thus destined for one of the spouses to live there, regardless of whether the household belongs to the couple (as common heritage) or belongs exclusively to the other spouse (as a proper property).
It often happens that the family home is owned only by one spouse but stays there to live the other spouse. Weird ? Not so much. We explain.
By a written agreement, the couple can define which of the spouses is living in the family home with payment of income to the other and specific conditions (for example, until the minor children are adults, etc.).
If the couple can not agree, either spouse may apply to the court an interim or final decision for the family home.
If the Court’s decision on this matter is necessary, the spouses should explain to the Court which facts they consider important for the decision, such as specific family reasons, minor children, health or professional reasons that may be relevant to the decision.
Does this mean that the spouse who is no longer living in the family home loses the rights to this property? Not usually.
If the family home is common property of the couple, for example purchased after the wedding celebration, the house will remain the property of both spouses.
In this case, both spouses continue to own and are obliged to pay the bank credit, taxes and condominium expenses, among other expenses. Only housing expenses (eg, electricity charges, water supply, etc.) will be the responsibility of the spouse who continue to reside in the house.
So, what happens if the family home is owned only by one of the spouses?
In this case, the spouse will continue to be the sole owner of the home, even if he or she does not reside there and becomes the other spouse’s home.
The spouse (who does not reside in the family home) will continue to be solely responsible for the payment of the bank credit, taxes and all expenses not related to living in the house. These expenses (electricity, water, gas, etc.) will obviously be the responsibility of the spouse who lives in the house.
So, in any case, the spouse who lives in the family home does not have to pay the other spouse for living in the house? Of course there is. Let’s see.
The spouse who will live in the house after separation from the couple or divorce, becomes the tenant of the house. As a tenant, if the home is the sole property of the other spouse, he must pay a rent to the owner of the house.
If the house is the common property of the couple, then he must pay half of the rent to the other spouse because he owns half of the property.
There is a situation of renting for housing, according to the general rules of the rental for housing, and the court can decide the conditions of the contract and expire the lease, at the request of the landlord, when circumstances warrant.
We can say that the spouse who will reside in the family house will not pay rent in the case of being the exclusive owner of the house.
It is important to note that residing in the house and paying rent does not interfere with the possibility of the house being sold to another person.
All this should be well considered by the spouses and well regulated in the divorce agreement or court decision.
For better clarification of all doubts and questions, the opinion of experienced lawyer is very important.