YEAR 2021 N.º 2
Jorge Manuel Leitão Leal
AECOP; Set-off; Counterclaim; Case management; Formal adequacy.
The Portuguese Code of Civil Procedure 2013 provides, in Article 266(2)(c), a rule which constitutes a novelty in relation to the previous Code of Civil Procedure, about the way set-off (compensação) must be implemented in court. Differently from the previous CPC, this rule extends the scope of the counterclaim procedure (reconvenção) to the invocation of counter-credit, even if only as legal defense (exceção), aiming mere reduction or extinction of the plaintiff´s claim. This novelty contained in the current CPC follows, according to the majority opinion, that the invocation of set-off by the defendant must be effected exclusively by means of counterclaim procedure. However, procedural species exist that, in the configuration given to them by the legislature, they do not provide for counterclaim. These species include special action to comply with small financial obligations arising from contracts, provided for in Decree-Law No. 269/98 of 1 September (also called by the acronym AECOP). Thus, it would be said that the defendant complained of in this procedural form will be prevented from invoking set-off of credit which he has before the plaintiff, in order to extinguish, partially or completely, the claim subject to the action. This assertion, however, does not take unanimity. That is the object of this paper. In it we will deal with set-off, counterclaim procedure in the light of the previous civil procedural regime and the current Code of Civil Procedure, the relationship between the general civil procedural regime and the special procedural regimes and the principle of case management, in the light of formal adequacy.