A locação financeira restitutiva | 2012

Author(s) Nuno Manuel Basto Silva Ferreira
Advisor(s) Américo Fernando Gravato Morais
Year 2012

Synopsis As an introduction, the object of this study is to analyze the sale and lease-back agreement in its entirety, which has a little impact on our legal system. It is a figure somewhat vague and obscure, thanks to the indifference manifested by both the national doctrine and the jurisprudence. This credit operation starts with a sale, followed by the financial leasing: the owner of a well sell it to someone else that gives immediately to the former proprietor the same object in financial lease. We decided to split this investigation in three parts. In the first part we try to figure out the origins of the figure object of our study, as well as analyze their evolution over time. In this respect, it is also necessary to delineate a brief overview about the current status of existing legislation relating to sale and lease-back. There is an analysis of the points addressed, both at the national legal system and some of the other jurisdictions of European Union. Having made this first approach to the sale and lease-back agreement, we focus our study in the characterization of lease-back operation and in its compatibility with the legal prohibition of the binding pact. We try to determine if the sale and lease-back agreement is admissible under our law. There is also a reference to the Spanish and Italian legal systems where arises with equal acuity the problem of compatibility of the lease-back with the prohibition of the binding pact. In the third part of this research, we discuss the legal framework of sale and lease-back agreement, as well as its legal status. Some questions that are usually asked in the course of a leasing contract, may also be raised in a sale and lease-back agreement. We aim also to define the legal status of sale and lease-back through the comparison with similar concepts. The study of sale and lease-back also comprises the analysis of a few questions of judicial nature.

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