Post by xyz3400 on Feb 20, 2024 3:00:13 GMT -5
Legal personality, first of all, is representative of “a legal fiction that, with regard to commercial companies, aims to provide the so-called private initiative, as a manifestation of the right to property, with an instrument for propelling economic activity"[1] The conception of the idea of abuse of rights, in turn, aims to “prevent the right from functioning as a form of oppression, to prevent the holder of the right from using his power for a purpose other than that for which it is intended”[2]. The approach to the figure of abuse of rights in the civil sphere has a positive hermeneutic basis in the wording of the sole paragraph of article 2,035 of the Civil Code, which states that no convention will prevail if it contradicts precepts of public order, such as those established by the code to ensure the social function of property and contracts.
The wording that the Civil Code preserved for the figure of abuse of legal personality before the enactment of Law 13,874/19 outlined a generalized panorama, which required jurisprudence and doctrine to formulate more objective application standards for its implementation[3] . The current text of article 50 of the Civil Code makes express reference to the term disregard and established more pragmatic criteria to guide Honduras Mobile Number List the finding of property confusion and misuse of purpose. Despite their general contours, changes in this regard appear positive. It is possible to glimpse more immediately three fundamental characteristics of the new wording of the provision, namely: the indication that the subjects of law capable of responding in terms of the extension of civil liability are those benefiting directly or indirectly from the abuse; the requirement of intentional behavior to form the deviation of purpose; and the intention of limiting patrimonial confusion to situations of non-compliance with patrimonial autonomy.
Furthermore, the hypothesis of reverse disregard is highlighted, which was already contained in article 133, paragraph 2, of the CPC, and hypotheses of non-characterization of abuse, which jurisprudence had already confirmed, such as the mere existence of an economic group and the mere alteration or modification of the economic activity of the legal entity. The distinction between the old wording and the new one is of significant relevance, when the latter limits those benefiting from abuse of legal personality the ability to respond for obligations that they did not personally contract, while the literalness that was previously inscribed in the codification did not accommodate this distinction and, therefore, was silent in relation to partners and administrators who may not have benefited from this context. The change therefore implies relevant progress in terms of legal certainty regarding the legitimacy to respond in these cases.
The wording that the Civil Code preserved for the figure of abuse of legal personality before the enactment of Law 13,874/19 outlined a generalized panorama, which required jurisprudence and doctrine to formulate more objective application standards for its implementation[3] . The current text of article 50 of the Civil Code makes express reference to the term disregard and established more pragmatic criteria to guide Honduras Mobile Number List the finding of property confusion and misuse of purpose. Despite their general contours, changes in this regard appear positive. It is possible to glimpse more immediately three fundamental characteristics of the new wording of the provision, namely: the indication that the subjects of law capable of responding in terms of the extension of civil liability are those benefiting directly or indirectly from the abuse; the requirement of intentional behavior to form the deviation of purpose; and the intention of limiting patrimonial confusion to situations of non-compliance with patrimonial autonomy.
Furthermore, the hypothesis of reverse disregard is highlighted, which was already contained in article 133, paragraph 2, of the CPC, and hypotheses of non-characterization of abuse, which jurisprudence had already confirmed, such as the mere existence of an economic group and the mere alteration or modification of the economic activity of the legal entity. The distinction between the old wording and the new one is of significant relevance, when the latter limits those benefiting from abuse of legal personality the ability to respond for obligations that they did not personally contract, while the literalness that was previously inscribed in the codification did not accommodate this distinction and, therefore, was silent in relation to partners and administrators who may not have benefited from this context. The change therefore implies relevant progress in terms of legal certainty regarding the legitimacy to respond in these cases.