Fraud to Creditors and Execution Stay tuned !!!

Already in the Roman Law was the concept of fraud against creditors.

Originally the debtor responded with his own body for his obligations, and that failure to comply with them put him in a situation analogous to that of slaves.

Over time there was an evolution of law and civilization until the emergence, in Rome, of Lex Poetelia Papiria. From this moment, the debtor stopped responding physically, passing on his equity to guarantee the debts.

As a natural consequence, the possibility arose of the debtor becoming insolvent in a fraudulent way, by the donation or alienation of their assets that would serve, by right, to guarantee their creditors.

The response to this concrete possibility came, always in Rome, thanks to the Pretor Paul, who created the so-called "Paulian Action", initially as a criminal action, precisely with the intention of punishing both the main fraudster (debtor) and the third Had engaged in fraudulent maneuvers.

Later, the Paulista Action also invalidated the legal transactions subject to fraud to creditors.

Regarding the history of the Praetor "Paulus", who created the "Paulian Action", there is a certain mystery. According to some, it could be Fr. Rutilio Calvo (where P. could be Paul, or Publius) mentioned by Livy among the Roman praetors of 169 BC. In this case there could be a coincidence of author between the "Actio Pauliana" and The "Actio Rutiliana", which also deals with related issues, that is, guarantees of creditors in case of bankruptcy. According to others it would be the "giureconsulto" (jurist) Paulus, praetorian prefect of Rome in 222 a.C., according to others still the name would be fruit of an evolutionary process occurred during the Byzantine period.

In today's Brazilian legislation, fraud against creditors is an illicit means of preventing creditors of an insolvent debtor from taking the assets of the debtor as payment of debts.

It is fraud against creditors to practice, by the insolvent debtor, or in the imminence of becoming such, of malicious acts that distract or embezzle his patrimony, with the scope of putting him safe from an execution for debts reducing the guarantee that such patrimony Represents for the credit rights of third parties.

This subject is embedded in the social vices of the legal business, along with the simulation.

It is an illicit and nullifying device, provided for in articles 158 to 165 of the Civil Code.

The requirements for the characterization of fraud against creditors (article 158 CC) are three:

1) the previous credit

The creditors after the insolvency of the debtor can not claim the annulment of legal transactions carried out by the debtor, if at the time of the realization of such business were not of him creditors. It is the obligation of creditors to make sure of the debtor's equity situation before concluding business.

2) consilium fraudis, that is to say, the faith and intent to defraud

The creditor is required to prove that the debtor was aware that his conduct would cause losses and that the third party acquirer also had prior knowledge that the act of alienation carried out on his behalf would result in losses to the collateral of the alienator's creditors. For the annulment of the legal transaction, it is necessary to prove the bad faith and the collusion of the debtor with the acquirer to squander the equity, otherwise, the rights of the acquirer in good faith are preserved.

3) the eventus damni, that is to say the actual damage caused by the creation of the insolvency situation

In order to prove the actual damage, that is to say, insolvency, the creditor may invoke the presumption of insolvency foreseen in art. 750 CPC, it being incumbent upon the debtor in the face of such claim, indicate the possible existence of other assets sufficient to guarantee the debt. The causal link between the disputed disposal and the insolvency of the creditor must also be established.

The cases in which the Civil Code establishes presumption of fraud to the creditors are the following:

Transfer or free transfer or remission of debt (article 158 CC). In this case it is irrelevant to the science of the donor's insolvency of the donor. The interest of the creditor prevails over the interest of the grantee, since the intention is to avoid damages. The same is true for the remission of debts, since in pardoning some debt the assets of the creditors are reduced.

Assignment or sale for consideration, if committed by an insolvent debtor (article 159 CC). In this case there is a conflict between the creditor and the acquirer in good faith. If the acquirer has not and could not be aware of the insolvency of the debtor, his interest is that it will prevail over that of the creditor. Otherwise, if he acted in bad faith, he becomes an accomplice of the debtor and the business can be revoked.

Prepayment of debts due (article 162). If the debtor, on expiration, pays off the overdue debts acts lawfully. However, if you pay future debts, you act abnormally, which reveals the fraudulent purpose.

Fraudulent granting of real guarantees or constitution of preemptive rights to some of the creditors (article 163 CC). O