European Commission > EJN > Applicable law > Portugal

Last update: 25-09-2006
Printable version Bookmark this page

Applicable law - Portugal

EJN logo

This page is now obsolete. The update is currently being prepared and will be available in the European e-Justice Portal.


 

TABLE OF CONTENTS

I. SOURCES OF THE RULES IN FORCE I.
I.1. National Rules I.1.
I.2. Multilateral international conventions in force I.2.
I.3. Principal bilateral conventions in force I.3.
II. IMPLEMENTATION OF CONFLICT OF LAWS RULES II.
II.1. Obligation of the judge to apply conflict of laws rules on his/her own initiative II.1.
II.2. Renvoi II.2.
II.3. Change of connecting factor II.3.
II.4. Exceptions to the normal application of the conflict rules II.4.
II.5. Proof of Foreign Law II.5.
III. CONFLICT OF LAWS RULES III.
III.1. Contractual obligations and legal acts III.1.
III.2. Non-contractual obligations III.2.
III.3. Personal status and aspects of civil status (name, domicile and capacity) III.3.
III.4. Establishment of affiliation, including adoption III.4.
III.5. Marriage, unmarried couples/partnerships, divorce, judicial separation, maintenance obligations III.5.
III.6. Matrimonial property regimes III.6.
III.7. Wills and Successions III.7.
III.8. Real property III.8.
III.9. Insolvency III.9.

 

I. SOURCES OF THE RULES IN FORCE

I.1. National Rules

The rules of Portuguese private international law are based on written legal texts issued by the authorities empowered for this purpose – in other words, on mandatory rules intended to establish general criteria that are applicable to specific situations and issued by the competent bodies of the State. These rules are set out in written texts which define their scope and outline.

Custom (the constant social practice underlying a belief in the binding nature of the rule in question) may not, under the terms of the Portuguese Civil Code, constitute an immediate source of law. However, in certain areas, notably in the sphere of international public law, it is still an important source.

In Portugal, doctrine (the product of the work of students of legal science) and jurisprudence (the sum total of previous court decisions) are not, in general, considered as sources of law, although they are acknowledged as being influential for the creation and application of laws. However, decisions of the Constitutional Court, which are universally binding, constitute genuine sources of law.

I.2. Multilateral international conventions in force

On this point, please see the list of conventions contained in the complete version of this information sheet in the Portuguese Contact page of the European Judicial Network in Civil and Commercial Matters, on http://www.redecivil.mj.pt/ português.

TopTop

I.3. Principal bilateral conventions in force

On this point, please see the list of conventions contained in the complete version of this information sheet in the Portuguese Contact page of the European Judicial Network in Civil and Commercial Matters, on http://www.redecivil.mj.pt/ português.

II. IMPLEMENTATION OF CONFLICT OF LAWS RULES

II.1. Obligation of the judge to apply conflict of laws rules on his/her own initiative

The judge is required to consider the applicability of conflict of laws rules, even if neither party is claiming the applicability of foreign law.

However, in certain fields, in particular in the contractual sphere, the parties are at liberty to define applicable law. This means that the parties are free to choose the foreign substantive law to govern their specific relationships. Once this choice has been made, conflict of laws rules do not apply.

II.2. Renvoi

Does renvoi exist in Portuguese private international law and, if so, to what extent does it allow for applicable foreign law to point to national law or to the law of a third country?

Under Portuguese law, the general principle applies that reference in the conflict of laws rules to any foreign law only determines the application of that particular law if there is no rule stipulating otherwise; this attribution of competence only covers rules which, by virtue of their content and legal function, incorporate the rules of the institution referred to in conflict of laws rules.

TopTop

Despite this statement of principle, Portuguese law does allow renvoi in cases where the foreign law selected in the national conflict of laws rule does not consider itself applicable and instead points to another law, which could be Portuguese or that of a third country.

Thus, if the private international law of the legal system to which the Portuguese conflict of laws rules point applies renvoi to the law of another country and if that law considers itself to be competent to deal with the matter, the law indicated must be applied.

Renvoi must also be accepted where there are not three but four or more laws involved, on condition that all parties are in agreement on one particular law as being the most suitable to deal with a private international matter.

This arrangement does not apply if the law referred to by Portuguese international private law is personal law (in Portuguese, personal law is that of the nationality of the individual concerned) and the person concerned is normally resident in Portuguese territory or in a country whose conflict of laws rules consider the domestic law of the country of his or her nationality as being applicable.

However, the above rule will still be applied in cases of guardianship and tutelage, financial relations between spouses, paternal authority, relations between adoptive parents and adopted child, and the estate of a deceased person, where the national law referred to by the conflict of laws rule points to the law of the place where immovable property is located and where that law considers itself to be applicable.

II.3. Change of connecting factor

What happens in the event of a change of connecting factor, for instance in the case of transfer of moveables?

TopTop

The connecting factor is the benchmark used by the law to identify the most appropriate law to deal with the legal situation concerned.

The connecting factor may be variable or fixed in nature, depending on whether it can or cannot be altered. Examples of variable connecting factors are those which relate to nationality, domicile, the situation of moveable property or the head office of a legal person. An example of a fixed connecting factor is the location of immoveable property or the place where a legal transaction is undertaken.

When the conflict of laws rule relies on a variable connecting factor, it normally determines the point in time at which that connecting factor must be considered.

A change in the connecting factor concerned, may give rise to the successive application of various laws, thereby giving rise to the so called moveable conflict.

In such cases, the rule is that application of the new status (for instance the new location of the moveable item or the new personal status) must not prejudice previously acquired rights.

Some variable connecting factors may change their contents by determination of the parties, who thereby acquire, to a certain extent, the ability to select the applicable law. To prevent abuse by deliberate transfers, Portuguese law introduced the notion of contravention of law, which stipulates that when applying conflict of laws rules, no account will be taken of factual or legal situations created with the fraudulent intent of avoiding the application of a law which would have applied in other circumstances; in other words, the sanction for the contravention of law consists of applying the very rules which the fraudulent action sought to avoid.

TopTop

II.4. Exceptions to the normal application of the conflict rules

Can the courts reject applicable law if this would conflict with international public policy?

Yes. Application of a foreign law indicated by conflict of laws rules does not apply where such application would involve a breach of fundamental principles of international public policy of the Portuguese State.

These principles are concepts which represent legal, political, ethical, social, economic and religious interests which are vital to the community adopting them, and which also constitute a distinguishing feature of that community. These concepts, in view of their particular importance, may not be ignored or violated by the application of a foreign law which contradicts them in an intolerable manner.

If the demands of public policy mean that a special rule of foreign law must be ignored, the corresponding general rule of that law must be used, with the law of the place of jurisdiction (i.e. the law of the country where the court hearing the action is located) applying solely where application of the foreign law is absolutely impracticable.

II.5. Proof of Foreign Law

What is the role of the judge and the parties?

The Portuguese legal system treats foreign law as law, and not fact.

Portuguese law stipulates that the party invoking foreign law must prove its existence and content, although the court is required to attempt, on an unofficial basis, to obtain information on it.

This obligation to obtain information unofficially also applies to the judge whenever he is required to pass judgement on the basis of foreign law, and neither party has invoked that law, or the opposing party has acknowledged its existence and content or has not opposed it.

TopTop

What evidence is accepted?

The law does not require any specific type of evidence, and therefore the party or the judge may use any appropriate type of evidence to prove their point (for instance, expert testimony or documentary evidence).

What is the consequence if foreign law is not proven?

If it is impossible to establish the content of applicable foreign law, recourse will instead be made to the law with secondary applicability, and the same procedure must be used whenever it is not possible to determine the factual or legal grounds on which the applicability of that law had been determined.

If no secondary connection can be identified, or it proves impossible to establish the content of the law indicated by that connection, the court must have recourse to the rules of Portuguese ordinary law.

III. CONFLICT OF LAWS RULES

III.1. Contractual obligations and legal acts

Since 1 September 1994, the Rome Convention on the Law Applicable to Contractual Obligations (1980) has been in force in Portugal. This applies to obligations assumed after its entry into force and where a conflict of laws is involved.

This convention enshrined a principle that the parties can choose which law is to apply to the contract or to part of it, and may even agree, at any time, to change the applicable law. However, the choice of foreign law may not prevent application of mandatory rules of the legal system of the country in which the other elements of the situation concerned are located at the time the choice is made.

If no choice is made, the contract is governed by the law of the country with which it has the closest connection.

TopTop

To determine this connection, an assessment must be made of the full circumstances of the case in question (place of residence or main office of the parties, place of central administration, principal establishment or establishment responsible for supply, location of the immoveable property, place of establishment of the haulier, contract language, location of its object and place of execution, nationality of the contracting parties, etc.).

III.2. Non-contractual obligations

Extra-contractual civil liability

In general, the Portuguese Civil Code considers that in cases of extra- contractual civil liability (i.e. liability arising from wilful and illicit breach of another’s rights or of the rules intended to protect the interests of third parties, or from dangerous activities or conduct which may be lawful but causes damage to third parties), the applicable law is that of the State in which the activity primarily responsible for the damage has occurred. In the case of liability due to failure to act in a proper manner, applicable law is that of the place where the person responsible should have acted.

The law indicated by the conflict of laws rule defines the grounds and consequences of the obligation to pay compensation.

Unjust enrichment

Under the terms of the Portuguese Civil Code, unjust enrichment (which occurs when a person obtains a financial advantage at another’s expense without just cause) is governed by the law under which the transfer of value to the enriched party occurred.

The law indicated by the conflict of laws rule governs the grounds, content and consequent obligations of this unjust enrichment.

TopTop

Negotiorum gestio

Negotiorum gestio (the situation of a person managing the business of another, in the interests and on behalf of its owner, without being authorised for that purpose) where legal acts are undertaken, is governed by the Hague Convention of 14 May 1978, on the Law Applicable to Agency.

III.3. Personal status and aspects of civil status (name, domicile and capacity)

In general, personal status is governed by the personal law of the persons concerned, as stipulated in the conflict of laws rule in the Portuguese Civil Code.

Personal law is the law of the individual’s nationality or, in the case of a stateless person, the law of the place of his habitual residence (in the case of a person of full age) or of legal domicile (in the case of a minor or a person with judicial disability). In the case of a person with no habitual residence, personal law will be that of the place of occasional residence, or, where this cannot be determined, the law of the place where the person is located at the time.

Personal law for legal persons is that of the State in which their principal and effective head office is located. The transfer of head office from one State to another does not cause loss of legal personality, if the laws of both countries are in agreement on this point. The merger of entities with different personal laws is governed by both personal laws concerned.

The personal law of international legal persons is the one indicated in the agreement setting them up, or in their Articles of Association. If no law is indicated, the law of the country in which the principal head office is located will apply.

TopTop

III.4. Establishment of affiliation, including adoption

This area is governed by the Portuguese Civil Code.

Normally, in this sphere the personal law of the parties involved will apply.

The establishment of affiliation is governed by the personal law of the parent at the time the relationship is established. In the case of the child of a married woman, establishment of this relationship as regards the father is governed by the common national law of the mother and of the husband; failing this, the law of the place of the habitual joint residence of the spouses will apply, failing which it will be the personal law of the child. For this purpose, the crucial point in time is the birth of the child or the time the marriage was dissolved if this takes place earlier.

Relationships between parents and children are governed by the common national law of the parents, failing which they are subject to the law of their habitual joint residence; if the parents normally reside in different countries, the personal law of the child will apply. If affiliation is only deemed to have been established with one of the parents, that parent’s personal law will apply; if one of the parents has died, the personal law of the survivor will apply.

The establishment of an adoptive relationship is subject to the personal law of the adopting parent. However, if the adoption is by the husband and wife, or the adopted child is the child of the spouse of the adopting parent, the common national law of the parents will apply, failing which it will be the law of their habitual joint residence. If there is no habitual joint residence either, the law of the country with which the family life of the adoptive parents is deemed most closely connected will apply. Relationships between the adopting parent and the adopted child, and between the adopted child and the original family, are governed by the personal law of the adopting parent.

TopTop

If the law governing the relationship between the adopted child and his or her parents does not recognise the institution of adoption, or does not allow it for persons in the family situation of the child to be adopted, adoption is not permitted

If, as a prerequisite for affiliation or adoption, the personal law of the person to be affiliated or adopted demands his or her consent, that requirement must be complied with. There must also be compliance with any requirement for the consent of a third party to whom the person concerned is linked by any relationship of family or guardianship, where this accords with the law governing that party.

The scope of the law governing relationships between parents and children primarily covers paternal authority. However, the Hague Convention concerning Powers of the Authorities and the Law Applicable in Respect of the Protection of Minors (of 5 October 1961) – which applies whenever the habitual residence of the minor is in a State which is a signatory of the Convention – makes paternal authority subject to the law of the minor’s nationality. Thus, wherever this Convention applies, the Civil Code has only a very limited application (for instance, it will apply for the purpose of determining the legal domicile of the underage child.

Additionally, the Munich convention on the Law Applicable to Surnames and Forenames makes the effects of affiliation on the child’s name subject to the law of the child’s nationality

The obligation to provide maintenance for the child is, in turn, governed by the Hague Convention on the Law Applicable to Maintenance Obligations in Respect of Children (of 24 October 1956) and by the Hague Convention on the Law Applicable to Maintenance Obligations (of 2 October 1973) – the latter replacing the former in respect of relationships between States bound by that convention.

TopTop

III.5. Marriage, unmarried couples/partnerships, divorce, judicial separation, maintenance obligations

The formal validity of marriage is governed in Portugal by the Hague Convention relating to the Settlement of the Conflict of Laws Concerning Marriage (of 12 June 1902). This international convention, however, is of increasingly limited significance owing to the small number of States bound by it.

Thus, it is the rules on conflicts derived from the Portuguese Civil Code which are now applied more widely.

Divorce and separation are governed by The Hague Convention relating to the Settlement of the Conflict of Laws and Jurisdictions with regard to Divorce and Separation (of 12 June 1902). Again, a very small number of States are bound by this convention and its practical significance is therefore limited.

Accordingly, the rules for the settlement of conflicts contained in the Portuguese Civil Code have a wider application.

In accordance with the Civil Code, relationships between spouses are governed by their common national law. If they are not of the same nationality, the law of their habitual joint residence applies, failing which it is the law of the country with which the family life is deemed to be most closely connected.

The maintenance obligations arising from family relationships (blood relationships, marriage, adoption and relationships through marriage) are, in principle, governed by the Hague Convention on the Law Applicable to Maintenance Obligations (of 2 October 1973).

III.6. Matrimonial property regimes

In terms of the effects (personal and financial) of marriage, the Hague Convention Relating to Conflicts of Laws with regard to the Effects of Marriage on the Rights and Duties of the Spouses in their Personal Relationship with regard to their Estates (of 17 July 1905) is in force in Portugal. However, this convention is of limited significance, because only a small number of States are bound by it. It should also be noted that, because its rules include the choice of law of the nationality of the husband , this international convention conflicts with the constitutional principle of equality of the spouses, which makes it impractical to apply it in full in Portuguese law.

TopTop

As a consequence, the law which normally governs the effects of marriage is the one designated under conflict of laws rules in the Portuguese Civil Code.

III.7. Wills and Successions

The Portuguese Civil Code defines the laws applicable to succession on death.

In general, it is the personal law of the deceased which governs the succession. This law also governs succession by death and the powers of the administrator of the estate and the executor. This personal law is, in principle, the law of the nationality.

The Hague Convention concerning the International Administration of the Estates of Deceased Persons (of 2 October 1973) is in force in Portugal. However, due to the very small number of signatories, its application is very limited.

In relation to formal aspects, the Convention Providing a Uniform Law on the Form of an International Will (of 26 October 1973) is in force in Portugal.

III.8. Real property

As regards the possession, ownership and other rights in rem (usufruct, use and habitation, timesharing rights, building rights and property easements) the law applicable is that of the State where the property concerned is situated. This rule applies both to moveable and immoveable property.

In principle, the facts which establish, transfer, modify or extinguish rights in rem are governed by the law on rights in rem applicable at the time such events occur.

Where a succession of rules apply, the principle to be followed is respect for acquired rights.

III.9. Insolvency

Proceedings in Portuguese courts for insolvency or corporate recovery, where the debtor is domiciled or has its registered office in Portugal, seek to include not only assets located in Portugal but also those abroad. In these situations, Portuguese courts are competent and will apply either procedural law or substantive Portuguese law.

However, in cases involving rights in rem over assets which form part of the property of the bankrupt or the company in the corporate recovery procedure, it appears that the applicable law is that indicated by real property rules, namely the law of the place in which the property is situated.

In principal, insolvency proceedings and their effects are governed by the law of the Member State in whose territory the action has been brought. However, certain effects are governed by the law applicable to the rights concerned (for instance, where rights in rem and reservation of title are involved).

Further information

Further information may be obtained from the following websites:

  • http://www.gddc.pt/siii/tratados.html - Documentation and Comparative Law Office;
  • http://www.stj.pt - Supreme Court of Justice;
  • http://www.tribunalconstitucional.pt/ português - Constitutional Court;
  • http://www.mj.gov.pt/ – Ministry of Justice;
  • http://trl.pt/ português - Lisbon Court of Appeal;
  • http://www.trc.pt/ português – Coimbra Court of Appeal;
  • http://www.tre.pt – Évora Court of Appeal;
  • http://www.trp.pt português – Porto Court of Appeal;
  • http://www.pgr.pt/ português – Public Prosecutor’s Office;
  • http://www.itij.mj.pt português – Legal databases;
  • http://www.cej.pt/ –Centre for Legal Studies (the body responsible for the training of Portuguese judges);
  • http://www.dgsj.pt português – Directorate-General for the Administration of Justice (which provides, inter alia, information on contacts with the courts and their territorial jurisdiction, and access to the Page of Justice Officials);
  • http://www.gplp.mj.pt/ – Legislative Policy and Planning Office of the Ministry of Justice;
  • http://www.dgrn.mj.pt português – Directorate-General for Registries and Notarial Services;
  • http://www.asjp.pt/ português – Association of Portuguese Judges;
  • http://www.smmp.pt/ português – Association of Public Prosecutors;
  • http://www.oa.pt/ português – Portuguese Bar Association;
  • http://www.dr.incm.pt/dr/ português - On-line database of legislation (containing laws and instruments published in the 1st Series of the Portuguese Official Gazette after 1 January 1970; free access is also provided to legislation published in the 1st Series since 1 January 2000);
  • http://www.solicitador.net/ português – Association of Legal Agents;

« Applicable law - General information | Portugal - General information »

TopTop

Last update: 25-09-2006

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom