It is frequent that, upon the termination of an employment contract, the employer presents the worker with a general discharge declaration, through which the worker declares to have nothing more to receive or claim from the employer. For many years, this type of declaration was considered valid by Portuguese jurisprudence.

Today, however, the regime is substantially different.

We are dealing with abdicative remission, a civil law concept provided for in Article 863 of the Portuguese Civil Code, through which the creditor voluntarily waives their credit, extinguishing the debtor's corresponding obligation.

It turns out that, in the field of labor relations, this concept has always raised special reservations and some controversy, because if on the one hand private autonomy constitutes a structural principle of the law of obligations, on the other hand, the special protection granted to the worker and the tendentially non-disposable nature of labor credits justify a more cautious approach.

For decades, Portuguese jurisprudence admitted the validity of the worker's abdicative remission declarations after the termination of the employment contract. The justification lay in the idea that, once the employment bond was extinct and the situation of legal subordination had disappeared, the worker recovered full bargaining freedom, being able to waive their credits, provided that the declaration was made freely, knowingly, and unequivocally.

This orientation was never, however, consensual. Part of the doctrine, notably João Leal Amado (1), has been pointing out that the termination of the contract does not, in itself, eliminate the material inequality existing between worker and employer. The economic vulnerability of the worker may persist after the end of the employment relationship, conditioning their bargaining freedom and encouraging the signing of waiver declarations without full awareness of the respective legal consequences.

It was precisely this context that motivated the intervention of the legislator through Law No. 13/2023, of April 3 (Decent Work Agenda). The new paragraph 3 of Article 337 of the Portuguese Labor Code expressly established that worker credits arising from the employment contract, its violation, or termination are not susceptible to extinction by abdicative remission, except by means of a judicial transaction.

The new paragraph 3 of Article 337 of the LC represents a true paradigm shift. If previously the validity of the remission depended essentially on demonstrating the freedom of the business declaration, currently the law requires the intervention of a judge, understanding that only within a judicial process is there effective control over the worker's will and over the balance of the agreement reached between the parties.

The solution adopted represents a profound change to the previously in-force regime, favoring judicial intervention as a guarantee of the validity of the waiver of labor credits. It is, however, a legislative option that did not fail to spark debate, particularly regarding its impact on private autonomy, legal certainty, and the swift resolution of disputes arising from the termination of the employment contract.

It is no surprise, therefore, that the recent labor legislation reform proposal presented by the Government sought to revisit this matter. Among the proposed changes was the possibility for labor credits to once again be subject to abdicative remission through a written document with in-person notarization of the worker's signature, thus dispensing with the need for judicial approval.

The proposal sought to find a balance between worker protection and the need to provide greater flexibility to the parties in resolving disputes arising from the termination of the employment contract. In practical terms, it would allow worker and employer to reach a definitive agreement without the need to file a lawsuit solely to validate a waiver declaration, reducing costs, time, and litigation.

Despite this, the change was not approved, maintaining in force the wording introduced by Law No. 13/2023. Thus, the extinction of labor credits by extrajudicial abdicative remission remains inadmissible, except when integrated into a transaction executed and approved within the framework of a judicial process.

Notwithstanding the legislative outcome, it can hardly be stated that the debate is closed. The proposal revealed that there is growing concern with the practical constraints of the currently in-force regime, especially in cases where both parties intend to put an end to the dispute by agreement, but find themselves forced to resort to the courts solely to give effect to the settlement reached.

Everything indicates, therefore, that this subject will continue to mark the Portuguese Labor Law agenda in the coming years. The challenge will be to find a solution that, without compromising the protection of the worker, allows recovering some space for private autonomy and for the consensual resolution of labor conflicts, while simultaneously ensuring the necessary legal certainty for workers and employers.

(1) Cfr. AMADO, João Leal, Da remissão abdicativa em direito do trabalho: em torno do novo n.º3 do Artigo 337º CT, Questões laborais, Ano XXX - n.º63, Jul/Dez 2023 [Reference in Portuguese]