The trap. During the negotiations for the trespasse of a restaurant, the buyer said plainly that she would only do the deal if the establishment was completely free of any debt or encumbrance. The seller knew that a judicial seizure (penhora) already sat over two of the establishment's assets, in an enforcement proceeding. She said nothing. The day immediately after the transfer, the seller's old creditors turned up at the restaurant — unpaid supplies to that same establishment.
What the court decided. The Court of Appeal of Porto revoked the first-instance judgment and declared the trespasse voidable. The seller was ordered to return the 3,500,000$00 paid in cash and cheques totalling 10,000,000$00 — roughly €67,300 at the fixed escudo conversion rate — with default interest from the summons. The buyer handed the restaurant back. That took years of litigation to reach.
The part most buyers get wrong. The buyer had pleaded fraud. The court did not decide it that way. It annulled the deal for error (arts. 247.º and 251.º of the Civil Code), reached through the pre-contractual duty of good faith in art. 227.º(1) — culpa in contrahendo. In the court's words, among the duties of a negotiating relationship is "o esclarecimento de certos factos: cada uma das partes pode, segundo a boa fé, esperar a comunicação dos factos que a outra parte deva admitir serem importantes para a sua decisão de contratar" — the disclosure of facts each side should recognise as important to the other's decision to contract.
You do not have to prove the seller lied. You have to show that they stayed silent about something you had told them was decisive. Which is exactly why saying, in writing, "I will only buy if the business is free of debts and encumbrances" is not a pleasantry — in this case it was the sentence the judgment turned on.
Source: Acórdão do Tribunal da Relação do Porto, processo 0150272, 2 April 2001 (document no. RP200104020150272; relator Fonseca Ramos; unanimous; lower court: 1.º Juízo Cível de Oliveira de Azeméis, proc. 627/99). Cited provisions: arts. 227.º, 247.º, 251.º and 762.º of the Portuguese Civil Code. Parties are anonymised in the published decision; retrieved from dgsi.pt on 8 July 2026.
What to verify before you sign a trespasse
- Court and enforcement records — whether any penhora or enforcement action touches the business, the seller, or the premises. Published decisions (dgsi.pt) show only litigation that reached a judgment — a still-open penhora usually won't appear there, so ask for registry certificates and a document-backed written statement, not just a database search.
- A written creditor picture, not a verbal one — supplier debts don't appear in any single register. Demand the seller's accounts-payable position in writing, and treat "trust me, no debts" as a flag in itself.
- Encumbrance status in the registries — confirmed by documents, not assurances, before any deposit.
- Suppliers' behaviour — if key suppliers will only deal with the seller cash-up-front, they know something you don't yet.
This is exactly what a Deal Screen looks for. Court databases, insolvency registers, enforcement records — checked against the seller's story, before you fly, sign or wire anything. Two pages, 48 hours, signed by me.
Check my deal →Basis: a published decision of the Portuguese courts (public judicial database, dgsi.pt); the reference is cited so readers can verify the court's reasoning independently. Parties are not named in this text; all facts are as stated by the court. This is a condensed summary of one judgment — it may not reflect the full context or any later appellate history, and it is general information, not legal advice, and not a statement about any current listing.