Civil Laws at Portugal
Portugal operates under a civil law system, which means its laws are primarily codified in comprehensive written codes, rather than relying heavily on judicial precedent as in common law systems. This legal tradition is deeply rooted in Roman law, particularly the ius commune (common law) of medieval Europe.
The cornerstone of Portuguese civil law is the Civil Code (Código Civil), approved by Decree-Law No. 47344/66 of November 25, 1966. While it has undergone numerous revisions and amendments since then to adapt to societal changes and EU law, its fundamental structure and concepts remain.
Here's an overview of the civil laws in Portugal:
1. The Portuguese Civil Code (Código Civil): Structure and Key Areas
The Portuguese Civil Code is comprehensive and structured into five main books:
Book I: General Part (Parte Geral) (Articles 1-396): This foundational book lays down general principles that apply across all other parts of civil law. It covers:
Sources of law, legal interpretation.
Law of persons (natural and legal persons), personality rights.
Legal capacity, domicile, absence.
Legal facts, declarations of will, defects in consent.
Exercise and protection of rights, including the principle of good faith (boa fé) and the prohibition of the abuse of rights (abuso de direito).
Limitation periods (prescription and preclusion).
Book II: Law of Obligations (Direito das Obrigações) (Articles 397-1250): This is a vast section dealing with:
Contracts: General theory of contracts, formation, validity, effects, and termination. Specific contracts like sale, lease, loan, mandate, etc.
Torts (Civil Liability): Rules concerning civil wrongs and the obligation to compensate for damages caused by illicit acts (e.g., negligence, intentional harm).
Other Sources of Obligations: Unilateral promises, unjust enrichment (enriquecimento sem causa), negotiorum gestio (management of another's affairs without mandate).
Book III: Property Law (Direito das Coisas) (Articles 1251-1575): This book regulates rights related to tangible and intangible assets:
Possession: The factual power over a thing.
Ownership (Propriedade): The most extensive right over a thing, including its acquisition, transfer, and protection.
Other Property Rights: Usufruct, servitudes (easements), surface rights, and other limited real rights.
Co-ownership.
Book IV: Family Law (Direito da Família) (Articles 1576-2023): This part governs legal relationships within the family:
Marriage: Requirements, impediments, celebration, effects, and dissolution (divorce). Portugal was one of the early countries to legalize same-sex marriage.
Marital Property Regimes: Defines how assets and liabilities are managed and divided during marriage (e.g., community of acquired assets, separation of assets). The "community of acquired assets" (comunhão de adquiridos) is the default regime.
Parenthood: Filiation (legal relationship between parents and children), parental responsibilities (poderes parentais), adoption.
Food (Maintenance) Obligations: Support obligations between family members.
Book V: Inheritance Law (Direito das Sucessões) (Articles 2024-2334): This book regulates the legal fate of a person's estate after death:
Testamentary Succession: Wills, their types, validity, and interpretation.
Intestate Succession: Rules for inheritance when there is no valid will.
Forced Heirs (Herdeiros Legitimários): Establishes the portion of the estate that must be reserved for certain close relatives (e.g., spouse, descendants, ascendants).
Acceptance and Repudiation of Inheritance: Procedures for heirs.
2. Other Key Civil Legislation:
While the Civil Code is central, numerous other laws complement and sometimes modify its provisions, or cover specialized civil matters:
Civil Procedure Code (Código de Processo Civil): This separate code governs the rules and procedures for civil litigation in Portuguese courts. The current code was approved by Law No. 41/2013.
Commercial Code (Código Comercial): While aspects of commercial contracts are in the Civil Code, the Commercial Code and the Commercial Companies Code (Código das Sociedades Comerciais) specifically regulate commercial activities, companies, and commercial contracts.
Labour Code (Código do Trabalho): Governs individual and collective labour relations, employment contracts, working conditions, and social rights.
Consumer Protection Law: Specific legislation to protect consumer rights in transactions.
Intellectual Property Code (Código da Propriedade Industrial): Deals with patents, trademarks, industrial designs, and other intellectual property rights.
Land Registry Code (Código do Registo Predial) and Civil Registry Code (Código do Registo Civil): These codes govern the registration of real estate and civil facts (births, marriages, deaths), respectively, which are crucial for establishing and proving civil rights.
Insolvency and Company Recovery Code (Código da Insolvência e da Recuperação de Empresas): Regulates insolvency proceedings for both individuals and companies.
3. Judicial System for Civil Matters:
The Portuguese judicial system for civil matters is structured hierarchically:
Courts of First Instance (Tribunais Judiciais de Comarca): These are the general courts that handle most civil cases at the initial stage. They have specialized sections for civil, family, labor, commercial, and criminal matters.
Courts of Appeal (Tribunais da Relação): These are the second instance courts, reviewing decisions from the Courts of First Instance on both factual and legal grounds. There are five such courts in Portugal.
Supreme Court of Justice (Supremo Tribunal de Justiça): This is the highest court in the civil judicial hierarchy, primarily reviewing questions of law rather than facts. Its decisions set important precedents, although Portugal is a civil law jurisdiction where codes are paramount.
4. Key Characteristics and Influences:
Roman Law Tradition: The strong influence of Roman law is evident in the systematic codification, the categories of legal concepts (persons, things, obligations), and the emphasis on abstract legal principles.
Germanic Influence: The 1966 Civil Code, particularly its General Part, was also significantly influenced by the German Civil Code (BGB) with its systematic and abstract approach.
European Union Law: As a member of the EU, Portugal's civil law is constantly being shaped by EU directives and regulations, particularly in areas like consumer protection, competition, and company law.
Social State Evolution: The 1966 Civil Code, and subsequent reforms (especially after the 1974 Revolution), reflect Portugal's evolution towards a social state, with greater concern for the protection of weaker parties, gender equality in family law, and the compliance with ethical standards.
In summary, Portugal's civil laws are a sophisticated and comprehensive codified system, rooted in Roman and Germanic civil law traditions, continuously adapted to modern societal needs and integrated with the broader European legal framework.
RELATED Blog
0 comments