This measure falls under “Programa Capitalizar” (Capitalization Program), a strategic program designed to provide support to companies, promote investment and economic recovery, and which was already provided in the legislative package approved by the Council of Ministers on 18 May 2017.
This measure will enter into force on 1 July 2017 and will allow the parties in a pledge agreement which secures a commercial obligation and in which the guarantor is a merchant (comerciante), to agree that the pledgee, in case of default of the secured obligation, may appropriate the pledged asset or right (i.e. become the title holder of the pledged asset or right). Upon appropriation, the pledgee shall be obliged to reimburse the guarantor for the amount corresponding to the difference between the value of the pledged asset or right and the amount of the secured obligation. The value of the pledged asset for purposes of appropriation shall be the one assessed by valuation of the asset, in the manner set out in the relevant pledge agreement.
The measure is intended to implement the so-called “pacto marciano”, which has commonly been accepted by commercial and legal practice but has continued to cause some controversy, thus increasing certainty in the legal market.